Private Law and Fundamental Rights
The enactment of the Human Rights Act 1998 and the adoption of the Charter of Fundamental Rights of the EU as a binding treaty has provoked new questions about the relation between fundamental rights and the legal principles and rules elaborated in fields of private law, principally contract, tort, and property. Questions that have been raised include: Is private law based on or derived from fundamental rights? Can fundamental rights provide a source for new private law rights and obligations? Does the enactment of fundamental rights in a legal order collapse the distinction between public and private law, and if so, what are the consequences for theories of law? Do fundamental rights have the same meaning in a horizontal dispute between private parties? How should the fundamental rights of private parties be balanced against each other? As well as examining these broad questions, the course critically examines and assesses the case-law concerning the impact of fundamental rights on contract law, tort law, property law and other fields of private law. Cases and examples are drawn primarily from the common law in the UK and decisions of the Court of Justice of the EU and the European Court of Human Rights, but selective comparisons from other jurisdictions are occasionally introduced.
Learning outcomes: the course will permit graduate students to draw on, develop, and deepen their existing knowledge of private law and constitutional or human rights law. It will require considerable previous knowledge in private law and fundamental rights law. It will build on that knowledge in part by combining or integrating it in a new way, but more fundamentally in offering a fresh perspective on these materials. The course will require both careful analysis of legal reasoning in case law, but also more jurisprudential reflection on the relation between private law and fundamental rights. Comparative law material (mostly from European countries and the EU itself) will provide additional perspectives.