Constitutional rights and private law: foundations

Thesis

Constitutional rights and private law are on a collision course. Constitutional rights have many consequentialist aspects, grounded in collective responsibilities to bring about states of affairs amounting to social justice. Because social justice is affected by the actions and activities of private agents, constitutional rights often intrude into areas of law regulating private relations, such as tort law or contract law. The problem is that private law rights have many deontological aspects: they are grounded in personal responsibilities to treat others in certain ways regardless of considerations external to our direct relations with them.

This thesis makes the first steps in mediating these conflicting legal clusters. It sees both right-types as important parts in legal systems that try to preserve their integrity and legitimacy in conditions of moral pluralism. A delicate balance must therefore be found be-tween subordinating private law to constitutional rights and immunizing it from their scrutiny. As a first step, most constitutional rights should not entail duties for private agents, as this would risk the politicization of private relations. However, they can burden private agents indirectly, by creating state duties about the regulation of private relations.

To discharge these constitutional duties without ignoring, distorting, or eroding the relational normativity of private law rights, state agents must carefully locate public in-roads into private law in contexts in which private agents are responsible to attain or sustain social justice: sometimes personally and sometimes as part of the political collective. Such bridges from large-scale consequentialist prescriptions to small-scale interactions are not foreign to private law. But they are often undertheorized and underdeveloped. For constitutional rights to realize social justice through private law effectively, they must be broadened and placed on solid foundations. This requires connecting them to the normative features of each right-type and the conflicting moral paradigms underlying them.

Authors: Kohavi, T

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: constitutional rights; responsibility; rights; private law