Constitutionalism of Private Law: The European Convention on Human Rights Perspective

CONSTITUTIONALISATION OF PRIVATE LAW, pp. 43-57, Tom Barkhuysen, Siewart Lindenbergh, eds., Martinus Nijhoff Publishers, 2006

15 Pages Posted: 27 Jul 2011

See all articles by Tom Barkhuysen

Tom Barkhuysen

Leiden University - Leiden Law School

Michiel L. van Emmerik

Leiden University - Leiden Law School

Date Written: 2006

Abstract

Some say that human rights are not relevant to private law because these rights are effective only in the relationship between a state and its citizens. Others might say that human rights do not affect the right of private parties to enter into contracts or to draw up wills that are entirely arbitrary and contrary to human rights. This article need not be written if these statements tum out to be correct. After all, we are supposed to discuss the role of the European Convention on Human Rights - a human rights convention to which all European states are parties - in the development termed the constitutionalisation of private law. But are these statements correct, or should we conclude rather that human rights are increasingly relevant to private law, as others say? The answer to this question is not evident and it is interesting to examine the role played in private law by human rights.

The focus of this article therefore is the question whether and if so, and to what extent, human rights influence private law (not considering procedural law) and thus contribute to the constitutionalisation of this area of law. We confine ourselves to the European Convention on Human Rights (ECHR or Convention), because the rights contained therein apply to all European states. Moreover, we will only examine to what extent the Convention finds - directly or indirectly - application in private law, without considering whether the standards of the Convention are a material addition to the effective national private law standards. As practitioners of constitutional and administrative law as well as European law we are not equipped to answer this last question. This we would like to leave to civil law practitioners.

To come straight to the point: the conclusion of this article will be that the ECHR definitely plays a role in private law. Partly for that reason it can no longer be said that private individuals are entitled to arbitrariness. Although this role of the ECHR should not be overestimated, it should certainly not be underestimated.

Keywords: constitutionalism, private law, human rights, ECHR, ECtHR

Suggested Citation

Barkhuysen, Tom and van Emmerik, Michiel L., Constitutionalism of Private Law: The European Convention on Human Rights Perspective (2006). CONSTITUTIONALISATION OF PRIVATE LAW, pp. 43-57, Tom Barkhuysen, Siewart Lindenbergh, eds., Martinus Nijhoff Publishers, 2006, Available at SSRN: https://ssrn.com/abstract=1896149

Tom Barkhuysen (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Michiel L. Van Emmerik

Leiden University - Leiden Law School ( email )

P.O. Box 9520
Leiden, 2300 RA
Netherlands

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