Our Most Fundamental Rights

Abstract

What are our most fundamental rights? If one were to ask this question of lawyers or laypeople, the answers would be of a pattern. The English would refer to their important constitutional documents: the Magna Carta, the Bill of Rights 1689, and the Human Rights Act 1998. Scots might add the Union with Scotland Act 1706 and the Scotland Act 1998. Americans would refer to their Constitution and in particular to the Bill of Rights. Canadians would point to their Charter of Rights and Freedoms, New Zealanders to their Bill of Rights Act 1990, Germans to their Basic Law, and so on. Some in Britain and many others in Europe would mention the European Convention on Human Rights, officially called the Convention for the Protection of Human Rights and Fundamental Freedoms, and might now also point to the Charter of Fundamental Rights of the European Union. This chapter argues, however, that many of these rights are in fact found in the private law, specifically the law of tort and contract.