Fundamental Rights, Constitutional Principles, and the Law of Torts: Tortfeasors v. Tort Victims
Haftungsrecht im dritten Millennium / Liability in the Third Millennium: Liber Amicorum Gert Brüggemeier, A. Colombi Ciacchi, et al. eds, pp. 49-84
19 Pages Posted: 26 Mar 2009 Last revised: 28 Jul 2015
Date Written: 2009
A process of privatization of fundamental rights has been in existence, meaning that there is an increasing effect of fundamental rights outside of the citizen-state relationship, invading domains such as labor law, contract law, family law, and property law. These rights and principles have often served as much more than mere interpretive aids and have become actual substantive rules of law, independent of whether their invocation resulted in a successful or unsuccessful claim. This debate, commonly referred to as the horizontal effect of fundamental rights, has also undoubtedly affected the law of torts. The development of the debate surrounding the horizontal effect of fundamental rights and the readiness of several courts to permit basic rights to influence the outcome of a case, have led to an increasingly decisive role for constitutional texts in the field of torts.
The effect of fundamental rights in the field of the law of torts is undoubtedly more often felt in regard to the position of the tort victim, and the entitlement of the victim to damages, rather than in regard to the position of the tortfeasor strictu sensu. By this it is implied that, despite judges sometimes balancing the fundamental rights of both tort victims and tortfeasors, the influence of fundamental rights in the law of torts impacts, most often, directly the position of tort victims, either by strengthening or weakening their position, always concentrating more intensively on their interests. The position of tortfeasors is commonly only affected indirectly, as a consequence of the consideration of the fundamental rights of tort victims. This can be illustrated by references to the English, German and Italian jurisdictions.
Courts have, of course, on several occasions been very explicit in considering the relevance of those fundamental rights to which the tortfeasor is entitled in order to ensure a balanced and fair legal reasoning. However, the direct impact of fundamental rights on the position of the tortfeasor, where such impact is permitted, is usually limited to determining whether there is liability in tort or not. Moreover, once liability has been determined, constitutional principles and fundamental rights do not, or at least extremely rarely, play any role in the remaining parts of the civil procedure and judicial reasoning. This decisional methodology seems far from compatible with the role, contents and scope that constitutional principles and fundamental rights can and should assume in reaching a decision in torts.
This book chapter, by drawing from scholarly writings and case-law from several European and non-European jurisdictions, constitutes a contribution to a change from the focus on the position of the tort victim to that of the tortfeasor. In fact, we have to bear in mind that the law of torts, in the fulfillment of its functions, has to respect the values proclaimed by the principles of self-responsibility, protection of the individual, economic freedom, and equitable distribution of risks. It is clearly the case to say that, in order for the law of torts to fulfill and satisfy all its different functions and interests, while simultaneously respecting and promoting the values above mentioned, the position of the tortfeasor should be analyzed in se, not as a mere reflection of the position of the tort victim. No other instrument could perform this task better than fundamental rights, dynamic tools that they are. In addition, the thorough fulfillment of all fundamental rights equally requires such change in the legal mindset, as the law of torts has to give respect to the fundamental rights of both the tort victim and the tortfeasor in a balanced and just way. A refocus of the debate surrounding the horizontal effect of fundamental rights on the law of torts is therefore proposed, thus also assessing the impact that fundamental rights and principles may have directly on the position of the tortfeasor strictu sensu.
Keywords: Tort law, tortfesors, tort victims, constitutional law, fundamental rights, human rights, comparative law
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