Social Purposes, Fundamental Rights and the Judicial Development of Private Law

Abstract

This paper seeks to explore the horizontal application of fundamental rights from a private law perspective, asking whether and to what extend this practice might assist or frustrate private law in its task of regulating the relations among private persons. Although aligning itself with rights-based analyses of private law, the paper rejects Ernest Weinrib’s claim that private law does not concern itself with the promotion of social purposes extrinsic to the relationship between the parties. It shows that private law serves the common good by constructing communities and their institutions in a manner that is fully compatible with its freedom-enhancing function. This additional service is vital to the legitimacy of private law in a world no longer governed by the authority of tradition and religion. It is this additional service that benefits from fundamental rights. Examining court decisions from Germany, the UK and the European Court for Human Rights on the protection of privacy, the paper concludes that this benefit is gained when these rights are applied indirectly via the concepts and categories of private law whilst their direct horizontal application endangers the capacity of private law to play its distinctive role in the legal order.