Applicability of Fundamental Rights in Private Law: What is the Legislature to Do?
Martinus Nijhoff, Constitutionalisation of Private Law, pp. 33-41, Tom Barkhuysen, Siewert D. Lindebergh, eds., Leiden/Boston, 2006
9 Pages Posted: 23 Jul 2011
Date Written: September 22, 2006
In a lot of jurisdictions private law seems to be ‘constitutionalising’. Constitutionalisation of private law in the sense of the 'increasing influence of fundamental rights in relationships between private parties’ and fundamental rights being ‘those rights that were originally developed to govern the relation between the State and its citizens’. The increased influence or effect of fundamental rights in private law seems to be a relatively new phenomenon, a development spurred by the flux of (treaty based) human rights and basic rights over the last decades. Fundamental rights are to some extent 'odd balls' in private law; some even claim that fundamental rights are exclusively written for the relations between a State (or its government) and its citizens, and should remain to do so. Others have pointed out that in fact fundamental rights are and always have been engrained in private law. Even in its Roman law origins, private law already encompassed the protection of certain aspects of human dignity. Though historically fundamental rights may have evolved from private law, today they are a distinctly separate set of rights, set within a different legal hemisphere and with a different function. What then is the present day position of fundamental rights in private law and what challenges does it pose to the legislature? This contribution looks into this question from an predominantly continental European point of view.
Keywords: consitutionalisation, fundamental rights, private law, horizontal effect of fundamental rights, drittwirkung, legislature
JEL Classification: K10, K33
Suggested Citation: Suggested Citation