On the (In)compatibility of Human Rights Discourse and Private Law

Abstract

In this survey and critical analysis of European debates and judicial practices regarding the application of fundamental or constitutional rights to private law disputes involving contracts, proprietary rights, and other private interests, it is argued that the discomfort of some private lawyers with the spectre of the (direct or indirect) horizontal effect of fundamental rights, though differing in its emphasis between jurisdictions, can be explained in part by reference to novel theories of the place of fundamental rights in the legal order and in part by exaggerated concerns for the integrity of private law. Nevertheless, the insertion of fundamental rights into private law engenders problems of transplantation and translation, especially with respect to the derogability of rights. In the context of private law, fundamental rights take on new meanings and must be balanced against each other by a double test of proportionality. This transformation in the interpretation and the legal operation of rights is explained by a shift in the moral foundation of fundamental rights as they should be understood in relations between individuals from negative liberty to positive freedom (or autonomy).