The Justice Dimensions of the Relationship between Fundamental Rights and Private Law

European Review of Private Law 24(3/4), 425-455, 2015

Post-National Rulemaking Working Paper No. 2015-02

Centre for the Study of European Contract Law Working Paper Series No. 2015-08

Amsterdam Law School Research Paper No. 2015-34

26 Pages Posted: 17 Sep 2015 Last revised: 29 Jul 2022

See all articles by Martijn W. Hesselink

Martijn W. Hesselink

European University Institute - Department of Law (LAW)

Date Written: September 17, 2015

Abstract

This paper explores the justice dimensions of the relationship between the Charter of fundamental rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews that characterises the EU. Instead, the interpretation of fundamental rights should be guided by the demands of a political conception of justice that is acceptable to people adhering to divergent understandings of individual and common good. Secondly, courts and other interpreters of the Charter must distinguish between fundamental rights, freedoms and principles in accordance with their respective moral content and cogency. The generic and hyper-positivistic reference to the ‘constitutional’ or ‘primary-EU-law’ status of the entire Charter is far too crude. In particular, human rights, that all persons equally have by virtue of their humanity, should have a much stronger force than merely instrumental freedoms and principles. Thirdly, the facts of the reasonable pluralism of worldviews and of the indeterminacy of the Charter and its horizontal effects together call for judicial restraint. Because the fundamental rights, as formulated in the Charter, strongly underdetermine private law rules and outcomes of civil disputes, courts should in principle be deferential in cases where the reasons and interest raised by a constitutional right claim have already been addressed adequately in a robust democratic process. From the perspective of justice in each of these dimensions, the CJEU probably has been too partisan and activist in some recent private law cases such as Alemo-Herron.

Keywords: Charter of fundamental rights, private law, contract law, freedom, morality, political conception of justice, human rights

JEL Classification: K12

Suggested Citation

Hesselink, Martijn W., The Justice Dimensions of the Relationship between Fundamental Rights and Private Law (September 17, 2015). European Review of Private Law 24(3/4), 425-455, 2015, Post-National Rulemaking Working Paper No. 2015-02, Centre for the Study of European Contract Law Working Paper Series No. 2015-08, Amsterdam Law School Research Paper No. 2015-34, Available at SSRN: https://ssrn.com/abstract=2662040 or http://dx.doi.org/10.2139/ssrn.2662040

Martijn W. Hesselink (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
238
Abstract Views
1,099
Rank
233,596
PlumX Metrics