Human Rights in Private Law

Dan Friedmann, Daphne Barak-Erez, Dan Friedmann, Daphne Barak-Erez

• Publisher: Hart Publishing
• Year: 2002
• ISBN:
  9781847316851
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

Traditionally, the theory of human rights limited its application to the public domain, namely the relationships between individuals and public authorities. The great expansion of human rights legislation and concepts in modern national and international law has given rise to a major issue relating to their potential impact on private relationships. This book examines this important topic, which may revolutionize private law. It presents new approaches which strive to broaden the application of human rights to the private field on the ground that power can be abused and human rights can be infringed even when all parties are private. The subject is examined from theoretical and comparative perspectives by leading scholars representing a diversity of legal systems - the United States, Canada, England, South Africa, Germany and Israel. Among the contributors are Professor Todd Rakoff (Harvard), Professor Roger Brownsword (Sheffield), Professor Hugh Beale (Warwick) and Professor Ewan McKendrick (Oxford), Professor Ernest Weinrib and Professor Lorraine Weinrib (Toronto), Professor Christian Starck (Gottingen), Professor Andreas Heldrich (Munich) and others.

1

Introduction

DANIEL FRIEDMANN AND DAPHNE BARAK-EREZ

I

Human rights were originally conceived as rights and freedoms vis-à-vis the State and other public authorities. Their very fundamental purpose was to protect the individual against the omnipotent State with its vast powers of detention, expropriation and censorship. The major function of human rights thus was to mitigate the imbalance between two unequal parties, the public authority and the individual. In this respect, human rights constitute an integral part of public law.

The position of private parties vis-à-vis each other is, of course, completely different. Private law, which regulates their legal relationship, is predicated in practically all modern societies on the theory of equality before the law.¹ The imbalance in legal power, which characterises public law, does not exist in private law. This means, for example, that if A injures B or damages his property, his liability towards B will be determined by precisely the same rules that would apply in the opposite case in which it is B who injures A or his property.² This equality is, of course, formal in nature. It relates merely to the legal rights and freedoms of the parties. It does not eliminate the possibility of an imbalance between the parties in other respects, such as their relative wealth, economic power or mental ability. Moreover, equality before the law does not mean that the same rules serve A and B in an equal manner. Rules aimed at protecting property against damage or misappropriation may be advantageous to A, a large property owner, whereas the same rules may be of no benefit to B who has no property. Rules imposing liability for damage caused by a certain activity affect those who engage in this activity and those likely to be injured by it in diametrically opposed directions. Limitation on liability will benefit one group and be detrimental to the other, while expansion of liability will lead to the opposite result. There thus is a need to balance the interests of the groups involved.

Indeed, private law has always recognised that the rights and freedoms of one person must necessarily be limited by those of others and that the interests of society’s members must be balanced in a way that appears fair and reasonable. The law of nuisance requires that the utility of the defendant’s activity be weighed against the harm and inconvenience of that activity to others.³ The public interest in the activity is also taken into account.⁴ The law of negligence is similarly regarded as providing a balance between the actor and his potential victims. The fundamental concept developed in the nineteenth century that liability ought to be based on fault and that there should be no liability in its absence was predicated on the rationale that “a man must act somehow” and “the public generally profits by individual activity”.⁵

Courts and scholars have frequently exalted the specific rights and freedoms recognised under private law. Until recently, this was done without invoking human rights terminology. Referring to freedom of contract, Sir George Jessel declared that, “contracts when entered freely and voluntarily shall be held sacred and enforced by Courts of justice”.⁶ Today, however, freedom of contract can be considered a feature of the human right to dignity.⁷ Sir George Jessel did not use this term. He chose another, no less powerful, image to convey the importance of contractual freedom: he described it as “sacred”.

Some 100 years before Sir George Jessel made this statement, Lord Mansfield had to contend with the case of James Somerset,⁸ a slave who had been taken from Africa to Virginia and sold there to Charles Stewart. In 1769 Stewart took Somerset, his slave, to England. Some time later, Somerset ran away. Stewart had him captured and placed on a vessel on the River Thames, intending to take him to Jamaica to be sold. An application for habeas corpus was made, and the question arose whether Stewart, who had bought the slave in accordance with the law of sale that was valid in Virginia and Jamaica, owned him and was entitled to transport him from England. Lord Mansfield was well aware not only of the importance of the principle involved, but also of its economic implications.⁹

The parties to this case—as in most cases concerning slavery—were private parties, and the State was not directly involved. It was a pure case of private law.¹⁰ Although Lord Mansfield did not refer to human rights, he did state that slavery is “odious”, prohibited under the law of England, “and therefore the black must be discharged”.¹¹ Lord Campbell attributed to Mansfield the eloquent statement that “the air of England is too pure” for a slave to breathe,¹² but these words were actually taken from the argument made by Francis Hargrave.¹³

Thus, private law has always been concerned with human rights, though without actually using this term, even in the context of such mundane topics as assault, nuisance, libel and negligence. Those specialising in this field may find themselves in a position similar to that of M. Jourdain in Molière’s comedy Le Bourgeois Gentilhomme, who was greatly surprised to learn that he had been speaking prose all his life even when asking for his slippers or nightcap. Hence, the transformation we are witnessing may be considered merely terminological in nature and traditional issues will simply appear in the guise of human rights. However, the language we employ is not merely a tool to convey thoughts: it is a process that affects our analysis and conceptions. Hence, a change in terminology may have a more profound effect than a mere replacement of one word with another.

Moreover, while the introduction of human rights into private law does carry with it many concepts that are already well established in private law, it also brings with it values to which private law has hitherto attributed little weight. Private law will have to adapt to these values and, consequently, is likely to undergo a considerable transformation.

Another feature of this process relates to the potential transformation of human rights values within the framework of private law. Human rights were developed in the public law sphere against the background of the great imbalance that exists between the State with its vast legal powers and the individual who seeks protection against their abuse. When human rights concepts are transplanted into the private law environment, where equality before the law is the governing rule, they have to be modified and adapted.

II

The present collection of essays analyses from comparative and theoretical perspectives the application of human rights in private law and the practical implications of that application. The book is divided into five parts, with the chapters arranged according to two categories: those relating to general theories and approaches regarding the application of human rights in private law and those that discuss the influence of human rights on specific branches of private law. However, it should be noted that most of the chapters deal with topics that are relevant to more than one part of the book.

Part I of the book, entitled “Constitutional Values and Private Law—The Theoretical Framework”, contains chapters that discuss different models for introducing human rights into private law. Most of the constitutions and legislation that enjoy constitutional status discussed in these chapters do not include express provisions regarding their applicability to private parties.This is generally true with regard to the German Basic Law, discussed by Christian Starck, Andreas Heldrich and Gebhard Rehm; the Canadian Charter, discussed by Lorraine Weinrib and Ernest Weinrib; and the Israeli Basic Laws, discussed by Aharon Barak. Against this background, the chapters present theories on the application of human rights in private law “indirectly”, especially by means of “blanket clauses” and the interpretation of values that are relevant to private law. In contrast, the new South African Constitution, discussed by Anton Fagan, explicitly recognises its binding effect on private parties.

The opening chapter, “Constitutional Human Rights and Private Law” by Aharon Barak, analyses from a comparative perspective the various models for the application of human rights in the private sphere. Barak supports the adoption of a strengthened indirect approach, which, in his view, is most consistent with the values expressed in human rights legislation. The tools facilitating the application of this model already exist in private law in the form of such general concepts as “good faith”, “reasonableness” and “public policy”.

This chapter also examines the mechanisms required to balance the conflicting constitutional human rights in private law, focusing mainly on examples from the law of contracts. Barak argues that such a balancing should be sensitive to the difference between the conflict of values in the realm of public law and that conflict in private law, taking into consideration that in the latter, the balance involves the rights of two private parties.

In their chapter “Constitutional Values and Private Law in Canada”, Lorraine Weinrib and Ernest Weinrib describe the potential influence of the constitutional values enshrined in the Canadian Charter of Rights and Freedoms against the background of judicial denial of the direct application of human rights legislation in the private sphere. The chapter explores how constitutional values might be integrated into private law and guide its development in a manner consistent with constitutional values and thereby transform it. The authors suggest that the Canadian Supreme Court has already taken the decisive step of putting courts under the obligation to develop the common law consistently with Charter values. The consequence is that Charter values are now, in principle, admissible in any private law context. This gives rise to the apprehension of a detrimental effect on the individual freedoms cherished by private law, but this difficulty can be mitigated by sensitive application of the principle of proportionality. Moreover, the Canadian Charter of Rights and Freedoms, despite its unique features, nonetheless belongs to the family of constitutions with similar legal frameworks and which present similar challenges. It is, therefore, suggested that an inquiry into the experiences of other jurisdictions may produce useful insights into the relationship between the constitutional values and private law in Canada. Finally, the authors suggest that the idea of a free and democratic society is the broadest repository of constitutional values that must influence the development of private law in Canada.

A jurisprudential analysis of the developments in South African law is provided by Anton Fagan in his chapter “Determining the Stakes: Binding and non-Binding Bills of Rights”. The chapter explains what is at stake in the choice between a bill of rights that is binding on private parties and one that is not but will nonetheless influence the development of private common law. The author suggests that this choice does not affect the private-public divide or the community’s political commitments, but, rather, the justification for subjecting the development of private common law to constitutional constraints. While both binding and non-binding bills of rights equally constrain the development of private common law, each imposes a different kind of constraint. It is further argued that the answer to the question whether a community sees its bill of rights as a “framework” or a “foundation” may have implications for its choice between a binding and a non-binding bill of rights.

The next two chapters draw on the rich experience of German law in this field. In “Human Rights and Private Law in German Constitutional Development and in the Jurisdiction of the Federal Constitutional Court”, Christian Starck describes the various theories regarding the application of basic rights to legal relationships between private individuals (“the third-party effect of basic rights”). He suggests that the theories of direct and indirect third-party effect in private law are not as far apart as might appear at first glance. Under both theories, there is a need to balance competing interests. Starck explores the ways in which basic rights affect rules of private law. He presents a thorough examination of German case law in various areas and shows that basic rights affect almost all branches of the law of obligations.

Andreas Heldrich and Gebhard Rehm’s chapter, “Importing Constitutional Values through Blanket Clauses” presents the various views adopted by German jurists with regard to the Basic Law’s impact on third parties. Heldrich and Rehm discuss the Federal Constitutional Court’s decision rejecting the direct impact theory and adopting the indirect effect model. The chapter goes on to describe the mechanisms that enable the import of constitutional values into the private sphere, in particular, the interpretation of so-called “blanket clauses”. The authors conclude that the case for direct applicability of basic rights in private law has, at least for now, been lost. Yet, they argue that in most cases the theory of indirect effect leads to outcomes that are quite similar to those that would be reached under the theory of direct effect, since both theories require a balancing between competing constitutional rights.

Part II of the book extends beyond the immediate boundaries of national law and explores the effect of the European Convention on Human Rights on private law. The Convention was introduced into German domestic law as early as in 1952. But for English lawyers, this is a new and provocative development, as the Convention was only recently incorporated into English law by the Human Rights Act of 1998.

In their chapter “The Impact of the Human Rights Act 1998 on English Tort and Contract Law”, Hugh Beale and Nicola Pittam discuss the changes in private law which may result from the new Act. They examine the various doctrinal positions regarding the implication of the Human Rights Act in private law. The authors conclude that the Act does not have any direct horizontal effect or what has been termed “strong” indirect effect, but, rather, a “weak” indirect effect. The chapter seeks to assess the potential impact of the Convention rights on English tort law and contract law. In the field of torts, the authors address the transition from an unrestricted admission of defences like public authority immunity to their examination on a case-by-case basis in order to ensure their proportionate application. The authors argue that a similar effect of the Human Rights Act can be anticipated outside the area of public authority liability. The “weak” horizontal effect is expected to induce the courts to develop remedies against private defendants, which will lead to the development of the private equivalent of Convention rights. The Human Rights Act is also likely to affect the law of privacy and the law relating to employment contracts. However, its impact on other fields is, at present, difficult to assess.

Reinhard Ellger’s chapter “The European Convention of Human Rights and Fundamental Freedoms and German Private Law”, examines the effect of the European Convention of Human Rights on German private law by reference to Article 8 (protection of family life and privacy) and Article 10 (freedom of expression) of the Convention. Ellger suggests that the influence of these Articles is rather limited, though Article 8 did have an impact on a number of issues in the sphere of family law. The secondary importance of the Convention is ascribed to the fact that German private law has already been influenced by German constitutional law. The chapter also assesses the conflict between freedom of contract and human rights. It points out that human rights has the potential to limit freedom of contract and argues that such limitation may be justified in cases of market failure.

Parts III, IV and V of the book deal with the effect of human rights on specific areas of private law. Part III (“Contract and Property Law”) examines the dilemmas raised by the conflict between the classical premises of freedom of contract and property rights and human rights values. Roger Brownsword’s “Freedom of Contract, Human Rights and Human Dignity” explores the potential impact of the 1998 Human Rights Act on the law of contract. Brownsword suggests that the respect for human dignity should have important bearing on the way in which freedom of contract is to be understood and applied in the twenty-first century. He argues that there is need for caution in imposing limitations on freedom of contract and, in the absence of “good reasons”, it ought not to be restricted. Values represented by human rights upheld by a given legal system should be incorporated into the “good reasons” that provide a legitimate basis for restricting contractual freedom. Brownsword argues that freedom of contract is a particular expression of the dignity-based human right to individual autonomy, but that there are also good dignity-based reasons for restricting contractual freedom. The chapter sketches two competing conceptions of the elusive notion of human dignity—human dignity as empowerment and human dignity as constraint—the one supporting individual autonomy and justifying the enforcement of contracts, and the other serving as a ground for limiting freedom of contract.

The other two chapters in this part of the book explore the effect of the right to equality on individual autonomy. Peter Benson’s chapter “Equality of Opportunity and Private Law” discusses the power to discriminate in private law. Benson examines the question whether the juridical concept of rights and obligations in private law entails or even presupposes a notion of equality of opportunity that applies between individuals in their private transactions. He further examines the question whether private law offers a normative environment for a doctrine of formal equality of opportunity. Benson concludes that these questions should be answered in the negative. He argues, however, that the common law, in appropriate circumstances, has traditionally recognised and enforced rights that are beyond private law’s juridical concept of rights and that a requirement of non-discrimination is included in this category. Consequently, courts can enforce non-discriminat...