Judicial Governance in Private Law through the Application of Fundamental Rights

Abstract

Through the acknowledgment and balancing of the conflicting fundamental rights at stake in a private litigation, the courts ‘govern’ societal relationships. This judicial governance complements and adjusts the governance of the concerned societal relationships that takes place at the legislative level. This paper discusses a number of societal governance policies pursued, consciously or inconsciously, by national courts while deciding on private relationships through the application of fundamental rights. Thereby it considers casesdecided by courts in Germany, England, France, Italy, the Netherlands, Poland, Portugal,Sweden and Spain. One may observe six major policy trends underlying these decisions: (1)the fight against discrimination, (2) the protection of weaker parties in contract cases, (3) the increasing valorisation of non-economic interests in tort cases, (4) the protection of privacy from intrusions by media, (5) the protection of political rights in privately owned public spaces, and (6) environmental protection in property cases.