The Lion, the Fox and the Workplace: Fundamental Rights and the Politics of Long-Term Contractual Relationships

13 Pages Posted: 25 Jul 2009 Last revised: 1 Apr 2011

See all articles by Chantal Mak

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

Date Written: July 21, 2009

Abstract

This paper analyses the political role of fundamental rights in European case law concerning long-term contractual relationships between parties holding unequal bargaining positions (e.g. employer and employee). The central question is what can be the added value of argumentation based on these rights in respect to pure private law reasoning for the resolution of disputes arising from the contract. In order to answer this question, inspiration is taken from the work of ‘Lions and Foxes’ in legal theory, Ronald Dworkin and Duncan Kennedy respectively. It is argued that the application of fundamental rights reveals the legal-political stakes in German, Dutch and Italian cases concerning long-term (employment) contracts. These stakes can be depicted on a continuum, either putting a relative emphasis on party autonomy (e.g. by upholding the contract, since parties were in formally equal bargaining positions when concluding it) or leaning more towards the protection of the weaker party (e.g. by avoiding a clause because it infringes the weaker party’s substantive freedom to contribute to a balanced relationship with the other party). It is submitted that fundamental rights tend to bring questions of legal policy to the surface, because of their mediation between public values and private interests. The introduction of fundamental rights in contract law adjudication can thus make judges more aware of the policy choices expressed in their decisions. For this reason, it is suggested that further study of relevant contract cases in light of fundamental rights can prove worthwhile for defining common questions of policy in the law concerning long-term contracts in Europe. This may provide inspiration for a further harmonisation of contract law in this field.

Keywords: long-term contracts, fundamental rights, constitutionalisation, European contract law, legal theory, adjudication

Suggested Citation

Mak, Chantal, The Lion, the Fox and the Workplace: Fundamental Rights and the Politics of Long-Term Contractual Relationships (July 21, 2009). Centre for the Study of European Contract Law Working Paper Series No. 2009/08, Available at SSRN: https://ssrn.com/abstract=1437601 or http://dx.doi.org/10.2139/ssrn.1437601

Chantal Mak (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

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