1. Argument – from Spinoza to David Brooks

In Part III of Ethics, Spinoza essentially tells us that sad passions, a specific category of affects, are characterized by the fact that they diminish our power to act[1]. They contrast with the affects of joy, which increase this capacity. What is specific to gloomy passions is that they lock us into a form of passivity, make us dependent on external causes, and, consequently, distance us from our own freedom. These unhappy passions derive from inadequate imagination or ignorance, he says. For example, fear comes from the inadequate idea we form about a future danger; hatred may result from a misunderstanding of the real causes of an event, behavior, etc.

The remedy, for the rebellious Dutch thinker of the 17th century, who continues to fascinate and serve as a benchmark for a certain philosophical type of savoir vivre, comes from understanding the causes, from the strength of the heart, and from the amor Dei intellectualis. The latter would represent an intuitive knowledge of divine necessity which, by itself, can lead to active joy.

Let’s take a leap now. In a recent article in The New York Times[2], journalist David Brooks describes the current era (mainly the American environment, though his observations are valid throughout the West), starting from what he calls ‘dark passions.’ Using a purely Spinozist framework, not without talent and with the conciseness required by journalistic format, Brooks asserts that public debate is experienced differently today compared to the 2000s (so as not to go too far back) – when polarizations existed but did not have that oppressive, dark side. He summarizes the reasons in the idea that the demagogues of politics, the press, and the internet have exploited a common feeling of humiliation – our complexes, the dissatisfactions we all have to a greater or lesser extent – to feed sad passions. And these jeopardize democracy and dehumanize.

His intuition would be that we are on a spiral that is difficult, but not impossible, to stop. He recommends that, following in the footsteps of Vaclav Havel, Nelson Mandela, and Martin Luther King Jr., hope should be stimulated again (from the same formative sources – politics, media), the projection of a better future together, rebuilding an ideal of communal life and, why not, the revival at the societal level of virtue, which shifts the focus toward the common good.

I made this brief introduction before mentioning a figure whom I have admired for over ten years: Robert Spano, the former President of the European Court of Human Rights. Next, energized by the force of this model, we will also be able to approach a political-legal area, an important doctrine marked by a deviation that is all the more unsettling because it is not understood by the majority of legal professionals. And for this very reason, it is losing ground. We believe that the observation that we are at a turning point from the perspective of human rights is justified, hence the urgency of the topic addressed.

2. Spano or the Joyful Passion for Justice

Born in Iceland, with Italian roots and studies at Oxford, Robert Spano was appointed as a judge at the ECHR in 2013, at the age of 41. Thus, he is part of the new generations of judges at European courts who reach the peak of their careers early. Sociologically, this is very interesting to observe; politically, it is risky, and psychologically, it is difficult for the individual experiencing it to manage. Whereas it was natural, since its founding in 1959, for judges at the Court to conclude their careers in this position, benefiting during their mandate from the advantages of professional and life experience, things have changed significantly in recent decades. The pace of activity, the need for adaptability, mobility, and connection to the new (to issues raised by more recently acceded states, to progressive currents, to new technologies) have played a major role[3].

The fact that there is professional life even after the end of a mandate, however, gives them a certain desire for affirmation that in no way resembles the bonhomie of the wise men and women in Strasbourg from a few generations ago (until around the year 2000, I would say). Paradoxically, what was called judicial activism at the ECHR began with the older generations, the seniors. It was then that the foundations for bold interpretations were laid[4]. But the way they were made, the context, the elegance of the reasoning, left little room for major protests. Later, in the stage that is still ongoing, the balance of interests at stake fractured. The occupation of new territories of social and political reality, within a quasi-hegemonic paradigm of rights, has had a completely different substance and a completely different stake in recent times.

However, Robert Spano always seemed to me to be different. From the young man who sat like any mortal to listen in the large Courtroom of the Human Rights Palace in Strasbourg to the pleadings in a Romanian case in the autumn of 2013[5], to the active president a few years later, I read in his journey the calling, the need to overcome ignorance as a thinker of law, not as a functionary of law. In his case, youth was combined with academic experience, passionate involvement with a certain reflection of high political responsibility, something that careerists or those marked by poor understanding of axiological neutrality lack.

His brilliant tenure was crowned not only by his appointment as President of the Court in 2020, a position he held for three years, but also by his highly anticipated lectures, and by the fact that his doctrinal positions produced tangible changes. As early as his second year in office as a judge, he published an article[6] in which he called for a different kind of relationship with national courts and for maintaining a wide margin of appreciation for states, with attention to serious violations of fundamental rights and freedoms. A consistent follow-up to this principle-based position was developed in a 2018 article[7]. Among those interested in the phenomenon, as an ideology, not just as an uncritical accumulation of case law, these articles circulated widely precisely because they were not written for academic credentials or as an offering on the altar of scientometrics, but out of a long-term commitment; out of a need to insert fundamental freedoms into a logic of social good, and by no means out of frustration or blockage.

3. Why should the paradigm of rights be abandoned?

Lately, human rights, which had once promised better individual and collective outcomes, turn out to be a stumbling block. Democratic skepticism has long targeted them critically. Spano had already noticed this, and I believe his position as President of the Strasbourg Court carried a touch of tragic awareness. He observed, with more clarity than others, that his name too would one day be associated with this trend, with this slight drift. About three years after the end of his term, he continues to deliver, as is natural, opening speeches for prestigious educational institutions or organizations active in the field of human rights.

This year, on October 2, his inaugural lecture at the Human Rights Lawyers’ Association, held in London, was triggered by the letter dated May 22 of this year, signed by the leaders of 9 member countries of the Council of Europe (and the European Union)[8], which invites the Court to a “new and open-minded conversation about the interpretation of the Convention.”

The speech is structured in three parts – the philosophical roots of fundamental freedoms, the rights-based paradigm, and finally, the response to the issue of immigration, which, actually, has been the focal point and source of growing frustration for states seeking a new, sovereign migration policy[9]. Although he considers the letter to be unfounded and inopportune from many perspectives, Spano takes it seriously. He believes that the issue is a real one – and here we think we are witnessing an important signal that cannot be ignored.

What he highlights, following in the footsteps of Isaiah Berlin, is that liberalism emphasizes freedoms, not rights[10]. On what Berlin called negative liberties, as opposed to positive liberties, which can easily turn into entitlements and, ultimately, into claims completely detached from the community context.
The remark he makes, starting from the very preamble of the Convention, is that freedoms represent the general framework within which the protection of rights is embedded. The drafters of the Convention were certainly focused on limiting the powers of the state and avoiding arbitrary interference, rather than on individual claims detached from any form of responsibility. This is because, in any democratic society, a balance must be maintained between the prerogatives of the individual and the public interest. Therefore, the philosophical framework of the Convention could not aim at individualistic entitlements entirely disconnected from the reasonable imperatives of the common good. The scope and strength of rights must take into account the individual obligations, rather than to ignore them.

Regarding qualified rights (all except those enshrined in Articles 2 and 3 of the Convention), Spano does not deny that the Court’s evolving interpretation has been in the direction of expanding their scope of application (see the right to a fair trial, the right to privacy, the prohibition of discrimination, the right to property, etc.). This sphere of individual rights, constantly expanding, has increased the ratione materiae applicability of the first paragraph of the texts and has moved the discussion to paragraph 2, focusing on a test of proportionality and an assessment of the “necessity of restricting the right in a democratic society.” And, with a democratic society increasingly seen as a space of rights, the leeway of states in public policy matters has been correspondingly limited through case law in a growing range of areas (the most recent major impact being in the area of environmental policies).

Spano states with a certain bitterness and a vague trace of mea culpa that, no matter how many merits this direction in which the ECtHR jurisprudence has developed may have had, it has contributed to the feeling of a societal dislocation based on the narrative of human rights. The fact that anything can be transformed into a fundamental right through a legal pirouette, that the doctrine of human rights has become ‘the on-duty impostor’ rather than a benevolent enabler, is something that Spano believes must be taken very seriously by lawyers.

4. The Situation in Romania

Turning our attention to the Romanian system, we sense a certain delay, which may be of a civilizational nature. In the 2000s, when the ECHR was at the height of activism, there were still professors at the National Institute of Magistracy (INM) who spoke of the inviolable specificity of Romanian law, which allows the prosecutor to arrest. Those who discussed the bloc de constitutionnalité and the priority of the Convention over domestic law were considered bizarre or heretical. Later, based on a massive influx into law schools and the INM of Court jurisprudence and the most recent interpretations regarding fundamental rights, there was a fall into the sin of idolatry. Undoubtedly, we needed the Court to change many things that were not in order in the state/citizen relationship. But this, in a way, created unlimited expectations – the appeal to the ECHR as a fourth level of jurisdiction was both a sign of distrust in our own judiciary and an expression of confusion between rights and entitlements.

Then, after the wave of important and modernizing decisions, white-collar workers (politicians, businessmen, magistrates investigated or condemned by the Romanian justice system) set the tone for complaints to the ECHR, some more fanciful than others. You would throw 12 claims, 12 allegedly violated articles, with the idea of winning at least one. Besides increasing the workload, this caused irritation because it exported unseriousness and diluted the legal issues being debated. Against this background, the Court entered into a complicated reform process[11].

This process of emphasizing subsidiarity (see also Spano’s articles, mentioned) occurred precisely when the Romanian litigant, as well as the judge, had pinned great hopes on an additional appeal, to a serious jurisdiction, beyond suspicions, or on the progressive virtues of this craft. One had fashioned a new hope, sometimes with a mischievous smile; the other had finally found a reliable guide.

Not much remains from the fourth degree of jurisdiction after the aforementioned reform. Requests are dismissed as inadmissible, including on formal grounds, in which case you receive a simple letter; the deadline for filing an appeal has been reduced to 4 months, etc. Laden with the disease of self-righteousness, many transferred their frustration and anger onto the ECtHR judges, who in turn were made responsible for abuse and incompetence. At the same time, case law related particularly to the right to a fair trial and prison conditions continued to create frustration among the public, especially when white-collar offenders won their cases, even partially, with all of us bearing the consequences (acquittals, retrials, compensations paid from the public budget).

The tension I was talking about between individualistic claims and the common good, in the case of those who have committed crimes and have been or would have been sentenced, is fully unfolding. The saga of the statute of limitations is the best illustration of this phenomenon[12]. At the same time, the entitlement of some individuals to leave Romania shortly before the final conviction and to benefit in their country of residence from a much more lenient treatment, with the nature of the penalty imposed by the Romanian court being changed, insults common sense and outrages the ordinary citizen. Yet here, Robert Spano’s observation has undeniable validity. Human rights did not originally mean this. They must not ultimately fail in this version that breeds fury and indignation.

We do not (yet) have the immigration problem referred to in the letter of the nine, but the issues are not unfamiliar to us in principle: we are either holders of excessively rights-based judicial interpretation schemes at the domestic level, or victims of this rights paradigm when we wish to enforce final convictions based on judicial cooperation in criminal matters. At the level of the image of justice, all these things have an unprecedented effect of eroding trust.

5. Conclusions

The European Convention is, above all, a shield for freedoms, not a catalog of selfish entitlements. Accepting that the individual is not only a holder of rights but also a bearer of duties and responsibilities is the only way to maintain a minimal space of freedom. The hyper-individualistic approach has only provoked a backlash. And the paradigm based on the primacy of rights is all the more acutely scandalous in the case of convicted persons. Addressing matters without carefully balancing the interests at stake has already led to decisions that are neither credible nor comprehensible to the average person. Yet, this was not the intended effect when drafting the Convention.

A careful reading of these realities, in which justice was just one of the arenas for the expression of some endemic sad passions, would remove human rights from the realm of sources of frustration, resentment, and helplessness. It would bring us a better understanding and make us able to look at our (at least) professions again with the joy and commitment of Robert Spano.

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[1] Baruch Spinoza, Ethics, translated by Alexandru Popescu, Humanitas edition, 2006 (sentence 11 and following of part III).
[2] David Brooks, The Era of Dark Passions, the New York Times, September 18, 2025.
[3] However, this has also brought, here and there, some inconveniences: a certain celebrity-seeking manifested through narcissistic outbursts on social media, in some cases, through highly elaborate separate opinions in others, who feel the need to stand out by confusing the judicial act with Hyde Park, the court decision with a passionate essay, etc.
[4] Ireland v. United Kingdom, judgment of 18 January 1978, HandySide v. United Kingdom, judgment of 7 December 1976, Dudgeon v. United Kingdom, judgment of 22 October 1981, Malone v. United Kingdom, judgment of 2 August 1984, etc.
[5] The broadcast of the public hearing in the case of the Center for Legal Resources, on behalf of Valentin Câmpeanu v. Romania, is available on the Court’s website. I am aware of the detail of his presence in the courtroom because this is the unfortunate case in which I also pleaded. He can be noticed in the audience, engaged, with grimaces of approval/disapproval that are difficult to control, throughout the debates.
[6] Robert Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity?, Human Rights Law Review, vol. 14, no. 3 (2014)., pp. 487-502.
[7] Robert Spano, The Future of the European Court of Human Rights – Subsidiarity, Process-Based Review and the Rule of Law, Human rights Law Review, vol. 18, no. 3(2018), pp. 473-494.
[8] Initiated by Italy and Denmark, it was also signed by Belgium, Austria, the Czech Republic, Poland, Latvia, Lithuania, and Estonia. Essentially, the Council of Europe bodies, including the Court, are invited to adopt an interpretation of the Convention that no longer unduly extends, in particular, the scope of Article 3 (prohibition of torture, inhuman or degrading treatment) and Article 8 (right to private life), which affects how political leaders protect democracy and citizens in the face of current challenges. The response from the Secretary General of the CoE, Alain Berset, was not long in coming. On May 24, 2025, he issued an official statement reaffirming the judicial independence of the ECtHR. Among others, the human rights law professor from the University of Oxford, Başak Çali, described it as political pressure on the Court.
[9] The text of the conference was published on Robert Spano’s LinkedIn page on October 7 of this year.
[10] Isaiah Berlin, Two Concepts of Liberty, inaugural lecture delivered before the University of Oxford on 31 October 1958, published in the volume Four Essays on Liberty, Oxford Paperbacks, 1990.
[11] This materialized in the adoption of Protocol 14 (opened for signature in 2004, entered into force in 2010), Protocol 15 (entered into force in 2021), and Protocol 16 (signed in 2014, ratified in 2022, at which point it also entered into force for Romania).
[12] See also Gabriel Caian, Impunity and Human Rights, www.juridice.ro, April 1, 2024.

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Judge Gabriel Caian