The Influence of Human Rights and Basic Rights in Italian Private Law: Strategies of ‘Constitutionalisation’ in the Courts Practice

Abstract

This chapter analyses the various strategies practiced by Italian courts for the protection of human rights and basic rights. Rather than reviewing the impact of the constitutionalisation of private law in separate branches such as tort, contract, family, inheritance, labour law, etc., the paper thus focuses on the judicial techniques of implementing fundamental rights in private law as a whole. After summarizing the main legislative reforms involving protection of human rights under the realm of private law, the following techniques are analysed: judgments of constitutional legitimacy, horizontal effects of fundamental rights, setting aside legislative provisions conflicting with fundamental rights, ‘judge makes law’ in the absence of legal provisions and, finally, indirect and direct application of fundamental rights to contractual freedom and clauses.