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Constitutional Human Rights and Private Law

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Constitutional Human Rights and Private Law CONSTITUTIONAL HUMAN RIGHTS AND PRIVATE LAW Justice Aharon Barak* The question whether constitutionalhuman rights La question visant 6 diterminer si les droits de la merely define and delimit the relationship between personne garantispar la Constitution definissent citizen and state or whether such rights also apply et rigissentseulement les rapportsentre le citoyen to relations between citizens is fundamental to any et l'Etat ou s'ils s'appliquent aussi aux relations constitutionaldemocracy. The author examines the entre citoyens est essentielle t toute dimocratie scope of the application of constitutional human constitutionnelle. L'auteur examine le champ rights to private law with a view to resolving the d'application de ces droits constitutionnels au issue for the Israeli context. He sets out and droit privd en vue de risoudre la question dans le analysesfour modelsfor defining the appropriate contexte isradlien. Il propose et analyse quatre scope of the application of constitutional human modles visant b dtablirla portde de ces droits en rights and roots these models in the jurisprudence se rdfdrant6 lajurisprudencede diffdrents pays. of various countries. The authorgoes on to make L 'auteurrevendique ensuite le module oi les droits a case for the model in which constitutional hu- en question s'appliquent, mais indirectement, aux man rights apply, albeit indirectly, to relations relations entre simples citoyens. II soutient que between private citizens. Such an approach, he cette approche est la plus conforme aux principes argues, is the one most consistent with the guiding qui motivent les droits de la personne : le respect impulses that drive human rights: respect for de l'dgalitd, de la dignitd et de l'autonomie equality, dignity and individual autonomy. In individuelle. L'auteur ajoute que les instruments addition, the author argues, the tools forfacilitat- visant Lifaciliter l'adoption de ce modle existent ing his model of choice already exist in private dd ji) en droit privd, dans les notions de .bonne law, in the form of concepts like "goodfaith," foin, d'uordrepublic* et de aconduite oppressive*. "publicpolicy" and "unconscionability." PRIVATE LAW AND PUBLIC LAW ................................ 220 A. THE ESSENCE OF THE DISTINCTION ......................... 220 B. COMMON LAW HUMAN RIGHTS ............................. 222 1. Human Rights Originating in the Common Law ................ 222 2. Common Law Rights Have Also Been Applied in Private Law ..... 222 3. Human Rights in Private Law .............................. 224 I1. MODELS FOR THE APPLICATION OF CONSTITUTIONAL HUMAN RIGHTS IN PRIVATE LAW ...................................... 224 A. THE POTENTIAL MODELS .................................. 224 B. DIRECT APPLICATION MODEL: ARGUMENTS FOR AND AGAINST 227 1. Textual Arguments for Direct Application ..................... 227 2. Substantive Arguments for Direct Application ................. 228 3. Textual Arguments Against Direct Application ................. 229 4. Substantive Arguments Against Direct Application .............. 230 C. NON-APPLICATION MODEL: ARGUMENTS FOR AND AGAINST ... 231 1. Arguments For Non-Application ............................ 231 President, Supreme Court of Israel. 1996 Revue d'etudes constitutionnelles HeinOnline -- 3 Rev. Const. Stud. 218 1996 Justice Aharon Barak 219 Justice Aharon Barak 2. Arguments Against Non-Application ......................... 233 D. INDIRECT APPLICATION MODEL: ARGUMENTS FOR AND AGAINST 236 1. Arguments For Indirect Application .......................... 236 2. Arguments Against Indirect Application ...................... 238 E. APPLICATION TO THE JUDICIARY MODEL: ARGUMENTS FOR A ND AG A INST ............................................ 238 1. Arguments For Indirect Application .......................... 238 2. Arguments Against Indirect Application ...................... 240 II1. COM PARATIVE LAW .......................................... 241 A. THE WEALTH OF COMPARATIVE LAW ........................ 241 B. DIRECT APPLICATION MODEL .............................. 243 1. S w itzerland ............................................ 243 2. G erm any .............................................. 244 3. Other Countries ........................................ 246 C. NON-APPLICATION MODEL ................................. 247 1. C a na d a ..... .. ... ..... ....... ...... ................ .. 24 7 D. INDIRECT APPLICATION MODEL ............................. 249 1. G erm any .............................................. 249 2 . Ita ly . 2 5 2 3 . S pa in . .. .. .. .. 2 5 3 4 . Ja pa n ...... .. .. ...... ........ ..... ........... ...... .. 253 E. APPLICATION TO THE JUDICIARY MODEL ..................... 254 1. United States .......................................... 254 IV. CONSIDERATIONS FOR THE PROPER SOLUTION ................. 257 A. THE PROPER SOLUTION: NEGATION OF THE NON-APPLICATION MODEL ............................... 257 B. DIRECT OR INDIRECT APPLICATION ......................... 258 1. Strengthened and Augmented Indirect Application .............. 258 2. The Essence of Strengthened Indirect Application .............. 259 3. The Strengthened Indirect Application Model and the Direct A pplication M odel ....................................... 260 4. Indirect Application Model and Strengthened Indirect Application M o d e l . .. .. .. 2 6 1 5. The Strengthened Indirect Application Model and the Creation of New Legal Tools ........................................ 261 6. Indirect Application Model And Breach of Statutory Duty ......... 262 7. Strengthened Indirect Application Model and the Level of Protection Afforded to Human Rights ........................ 262 8. Private Law as a Balancing System ......................... 265 9. Adjustment of Private Law To The Application Of Basic Laws ..... 266 C. THE AUTONOMY OF INDIVIDUAL WILL AND BALANCING BETWEEN CONFLICTING PROTECTED HUMAN RIGHTS ......... 268 Vol. III, No.2 Review of ConstitutionalStudies HeinOnline -- 3 Rev. Const. Stud. 219 1996 Constitutional Human Rights and Private Law 220 1. The Autonomy of Individual Will as a Constitutional Right ........ 268 2. Balance Between the Autonomy of the Individual Will and Other Liberties ................................... .......... 269 3. Freedom to Fashion Contractual Content and Protected Human R ig hts . 2 7 1 4. Freedom to Make a Contract and the Principle of Equality ....... 273 5. Balance Between Autonomy of the Individual Will and Equality: The Good Faith Principle ................................. 275 6. New Tools: Negligence, Breach of Constitutional Duty, A buse of R ight ......................................... 277 7. Application In Private Law And The Application To The Judiciary M o d e l . .. .. .. .. .. 2 7 9 D. PROTECTED HUMAN RIGHTS AND PRIVATE LAW LEGISLATION .. 280 E. AN EXPLICIT CONSTITUTIONAL ARRANGEMENT FOR THE APPLICATION OF PROTECTED HUMAN RIGHTS IN PRIVATE LAW. 280 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. Conflicts between private parties and the government cross over the line between public and private law. Government bodies also have made "political agreements" amongst themselves.2 Private bodies have filled public roles, and have been For this distinction, see B. Akzin, "On Public Law" Statements of The Israel National Academy for Sciences 72 (Volume C, 5730). See also J. Beatson, "'Public' and 'Private' in Administrative Law" (1987) 103 Law Q. Rev. 34. 2 See H.C. 1601/90 Shalit v. Peres, P.D. 44 (3) 353; H.C. 1635/90 Gergovsky v. Prime Minister, P.D. 45 (1) 749; see also G. Shalev, "Political Agreements" lyunei Mishpat 16 215 (5752). 1996 Revue d'itudes constitutionnelles HeinOnline -- 3 Rev. Const. Stud. 220 1996 221 Justice Aharon Barak characterized as "quasi-public" bodies3 or as "hybrid creatures".4 Bodies have been recognized as "dual-nature" bodies, to which "both the principles of private law and the norms of public law" are applicable".' The obligations of trustwor- thiness,6 fairness,7 and reasonableness' - applicable to the government in its relations with private parties in the spheres of public law - have infiltrated private law, initially in private law relationships between the government and private parties,9 and subsequently in private law relationships between private parties.'" The "good faith" principle functioned as an instrument of influence from public law to private law, 1 and from private law to public law. 2 Fundamental concepts of public law, applicable between the government and private parties - such as the principles of natural justice 3 and the prohibition on conflict of interests 4 - have penetrated into relationships between private 3 Like the Jewish burial societies which operate in Israel: see Civ. App. 280/71 Gidon v. Burial Society GHS"E, P.D. 27 (1) 10, 18, in which Judge Etzioni titles the burial
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