The constitutionalisation of private law: Comparative analysis

Abstract

This article is divided into four parts. The first part discloses the definition of constitutionalisation of private law, which means the influence of fundamental (constitutional) human rights on private law. The second part is devoted to the analysis of the key issue related to the topic of constitutionalisation of private law — how and to what extent fundamental (constitutional) human rights influence private law. In this regard, the four models of private law constitutionalisation identified in comparativism and the pro/contra arguments for each of them are examined. The third part of the article examines which of these models is embodied in foreign legal orders (in particular, Germany, the Neatherlands, Canada, South Africa and the UK). The author concludes that the most widespread is the model of indirect influence of fundamental human rights on private law. The fourth part of the article provides a comparative legal analysis of the application of the indirect model of constitutionalisation. This model identifies two approaches that characterise the attitude of foreign lawmakers to human rights provisions in different ways. The first approach, the “strong” indirect model, assumes that human rights provisions enshrine rights that constitute binding rules. This approach is represented in particular in the UK. The second, the “weak” indirect model, views human rights provisions as enshrining values and being principles to be taken into account alongside other circumstances. This approach is represented in particular in Germany.