Academic journal article Review of Constitutional Studies

Constitutional Human Rights and Private Law

Academic journal article Review of Constitutional Studies

Constitutional Human Rights and Private Law

Article excerpt

I. PRIVATE LAW AND PUBLIC LAW    A. THE ESSENCE OF THE DISTINCTION    B. COMMON LAW HUMAN RIGHTS       1. Human Rights Originating in the Common Law       2. Common Law Rights Have Also Been Applied in Private Law       3. Human Rights in Private Law  II. MODELS FOR THE APPLICATION OF CONSTITUTIONAL HUMAN     RIGHTS IN PRIVATE LAW     A. THE POTENTIAL MODELS     B. DIRECT APPLICATION MODEL: ARGUMENTS FOR AND AGAINST        1. Textual Arguments for Direct Application        2. Substantive Arguments for Direct Application        3. Textual Arguments Against Direct Application        4. Substantive Arguments Against Direct Application     C. NON-APPLICATION MODEL: ARGUMENTS FOR AND AGAINST        1.  Arguments For Non-Application        2.  Arguments Against Non-Application     D. INDIRECT APPLICATION MODEL. ARGUMENTS FOR AND AGAINST        1. Arguments For Indirect Application        2. Arguments Against Indirect Application      E. APPLICATION TO THE JUDICIARY MODEL: ARGUMENTS FOR        AND AGAINST        1. Arguments For Indirect Application        2. Arguments Against Indirect Application  III. COMPARATIVE LAW      A. THE WEALTH OF COMPARATIVE LAW      B. DIRECT APPLICATION MODEL         1. Switzerland         2. Germany         3. Other Countries      C. NON-APPLICATION MODEL         1. Canada      D. INDIRECT APPLICATION MODEL         1. Germany         2. Italy         3. Spain         4. Japan      E. APPLICATION TO THE JUDICIARY MODEL         1. United States  IV. CONSIDERATIONS FOR THE PROPER SOLUTION      A. THE PROPER SOLUTION: NEGATION OF THE NON-APPLICATION        MODEL     B. DIRECTOR INDIRECT APPLICATION        1. Strengthened and Augmented Indirect Application        2. The Essence of Strengthened Indirect Application        3. The Strengthened Indirect Application Model and the Direct           Application Model        4. Indirect Application Model and Strengthened Indirect           Application Model        5. The Strengthened Indirect Application Model and the Creation           of New Legal Tools        6. Indirect Application Model And Breach of Statutory Duty        7. Strengthened Indirect Application Model and the Level of           Protection Afforded to Human Rights        8. Private Law as a Balancing System        9. Adjustment of Private Law To The Application Of Basic Laws      C. THE AUTONOMY OF INDIVIDUAL WILL AND BALANCING        BETWEEN CONFLICTING PROTECTED HUMAN RIGHTS        1. The Autonomy of Individual Will as a Constitutional Right        2. Balance Between the Autonomy of the Individual Will and Other           Liberties        3. Freedom to Fashion Contractual Content and Protected Human           Rights        4. Freedom to Make a Contract and the Principle of Equality        5. Balance Between Autonomy of the Individual Will and Equality:           The Good Faith Principle        6. New Tools: Negligence, Breach of Constitutional Duty,"           Abuse of Right        7. Application In Private Law And The Application To The           Judiciary Model      D. PROTECTED HUMAN RIGHTS AND PRIVATE LAW LEGISLATION      E. AN EXPLICIT CONSTITUTIONAL ARRANGEMENT FOR THE        APPLICATION OF PROTECTED HUMAN RIGHTS IN PRIVATE LAW 

I. PRIVATE LAW AND PUBLIC LAW

A. THE ESSENCE OF THE DISTINCTION

Western legal culture is based on the distinction between public law and private law. (1) Public law determines the allocation of power among government authorities, and the relations between the government and private parties. Conflicts within the realm of public law are routinely decided in the High Court of Justice. Conflicts within the realm of private law are decided in civil courts. This distinction between public and private law and courts has never been pointed or sharp. Through the legislature, the government enacts laws which regulate private relationships, and through the executive it acts in the area of private law and makes contracts with private individuals and bodies. …

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