Private Law and Human Rights - Essay Example

Essay Topic: The purpose of human rights is to protect certain fundamental interests of citizens from the power of the The purpose of private law is to facilitate the activities of free and equal citizens. The two should not be confused. Discuss Introduction The purpose of human rights or fundamental rights is distinguished from the purpose of private law in that the former protects citizens from excessive state power and the latter regulates relationships between private parties.1 More significantly, human rights have followed a human rights movement in the 20th century that involved a universal code for human rights and private law was said to be best served at the national level, and reflected of individual national values and traits. Even so, in more recent times there has been a movement toward the creation of universal private law, largely consistent with and reflective of universal human right.2 Despite this emerging parallel, the purpose of private law and the purpose of human rights are entirely different. This paper identifies the key differences between private law and human rights by examining their respective purposes. The Purpose of Human Rights The term human rights originate from the term “natural rights” and typically involve the term “universal rights”.3 Thus, natural and universal rights are embodiments of the political and moral thought that certain freedoms and rights are automatic to all individuals for the simple reason that they are all human beings.4 In fact, Article 1 of the Universal Declaration of Human Rights 1948 (UDHR)informs that, “all human beings are born free and equal in dignity and rights”.5 Article 2 goes on to state that: everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status.6 It can therefore be concluded from Articles 1 and 2 of the UDHR, that the purpose of human rights is to identify and describe the natural rights of mankind and to direct states to take measures that are appropriate for safeguarding and promoting those rights. Fagan confirms this conclusion by observing that both interest and choice theories of human rights agree that human rights are intended to “protect and promote the conditions for a certain quality of life for all”.7 The justification and purpose of human rights was motivated by the human atrocities committed by the state (Germany) during the Second World War. Thus ultimately, human rights as described by the UDHR seek to place constraints on the state’s ability to use its power against the dignity of its citizens. In this regard, liberal theory is instructive. According to liberal theory, state sovereignty dictates that all political and public authority belongs to the state. Therefore it is the state’s ultimate responsibility to protect and promote the natural rights and dignity of citizens within its state’s borders.8 Human rights are intended to recognize the vulnerability of human citizens to the authority of the state and to offer a method by which human citizens can be strengthened and can thus make claims against a state that seeks to exploit its own power and the vulnerability of the citizens within its territory.9 Donnelly explains that human rights identify common human values while private law embodies the underlying values that human beings do not have an automatic right to.10 Donnelly specifically states: Human rights are not just abstract values such as liberty, equality, and security. They are rights, particular social practices to realize those rights. A human right thus should not be confused with the values or aspirations underlying it or with enjoyment of the object of the right.11 For example the universal right against arbitrary capital punishment may be enjoyed independent of any universal human rights regime and quite simply because of underlying custom, practice or religious or moral codes. Human rights arise only when the individual has a specific remedy against the state for a violation of the universal right against arbitrary capital punishment.12 Thus the nature of human rights as an enforceable and inalienable set of rights against governments and their agencies operate to place a system of checks and balances on government power. The Purpose of Private Law The purpose of private law is essentially to regulate our social lives in the private sphere. As Weinrib explains, private law: Regulates the property we own and use, the injuries we inflictor avoid inflicting, the contracts we make or break.13 Thus, private law, unlike human rights law which is a part of the public law discourse, is calculated to regulate the relationships between individuals, organizations and corporations as private citizens. Some examples of private law are contract law, the law of tort, land law, company law, employment law and the law of equity and trusts. It is important to note here that private law is by definition and classification intended to deal with the common duties and rights of the individuals between one another. Thus private law: takes its meaning partly from what it excludes, notably public international law, constitutional law, local government law, administrative law, criminal law, military law and taxation.14 It therefore follows that private law does not include nor does it encompass any relationship between the individual and the government. Those matters are left to public law and since human rights are a part of the public law discourse, the purpose of human rights law is entirely different from the purpose of private law. Public law which includes human rights defines, allocates and regulates the state’s power and the power of the state over the individual. Thus the purpose of human rights law is not to regulate the relationships, rights and duties of private citizens between one another. Human rights law has had a significant impact on the interpretation and application of private law in the UK. The Human Rights Act 1998 was enacted to implement the European Convention on Human Rights.15 The impact of the implementation of Convention rights was enunciated by Lord Bingham in Harrow LBC v Qazi. Lord Bingham stated that the European Convention on Human rights: Is an attempt to identify the rights and freedoms most central to the enjoyment of human life in civil society and to give those rights and freedoms an appropriate measure of protection.16 In this case, the plaintiff’s tenancy to a freehold held by a local government agency came to an end by virtue of operation of law and he fought the local government agency’s attempt to evict him. The plaintiff essentially argued that Article 8 of the European Convention on Human Rights conferred upon him an inalienable right to a home and privacy. However, the House of Lords, while agreeing with the plaintiff’s claim, argued that, private law would operate in this case, because, the property was owned by another and domestic law dictated the appropriate approach to be taken to the nature of property rights. 17 Although the European Convention on Human Rights did not change the application of private law, it did however, expand the protections of private rights to such an extent that the plaintiff in Qazi was able to pursue a private claim by reference to human rights law. Hoffman explains that the main purpose of human rights laws in the UK following the implementation of the Convention via the Human Rights Act 1998, was to provide “as much protection to fundamental rights as possible.”18 In fact, the purpose of some branches of private law has been described as expanding the protection of fundamental rights. For instance, the law of tort, particularly, tort laws aimed at providing remedies between private parties for trespass, assault and battery, false imprisonment and defamation have as their aim the protection of fundamental rights to the person, property and liberty.19 As Hoffman explains: These ‘vindicatory’ torts afford strong legal protection to those interests considered fundamental to English civil society, such as property, liberty and reputation.20 The protection of property, liberty and reputation have historically and currently form the basis of human rights in the UK and are characterized by constraints on the government’s ability to intrude on those rights. Tort, a branch of private law provides an extension of those human rights by giving private parties the ability to enforce those rights not only against public officials, but against private citizens as well. The use of the law of tort as a branch of private law for the protection of human rights has been referred to as the “constitutionalisation of private law”.21 This is a rational approach to private law since, “property and contract can only be understood as concepts” originating from the “fundamental right to self-determination” which is not all about the selfish pursuit for damages in terms of money.22 It is therefore hardly surprising that over the last ten or so years, there has been an increasing contribution of human rights to the protection and enforcement of private law and in particular, contract, property and tort laws. Thus it is becoming entirely common for human rights to play a significant role in regulating the relationships and transactions between private parties.23 It is important to note however, that claims under the Convention cannot be made against private individuals. Ultimately, all human rights claims must be made against public authorities.24 Although a number of tort laws are vastly similar to or have justifications founded on human rights principles they continue to occupy a private sphere. Tort laws essentially confer upon private citizens a fundamental right to pursue claims against private parties in the same manner that they may make claims against public official on vastly similar laws. The difference however, is that human rights law seek to establish boundaries between government power and citizen vulnerability to that power. Private laws on the other hand, sets parameters for interactions and relationships between private parties and by doing so, regulates civil society. When one considers that human rights law has as its primary purpose, the protection of the vulnerable citizen from the abuse of power by the state, there are certainly similarities in the social justice component of private law. In many instances, private law has as its purpose the protection of the weak from the powerful. This purpose of social justice contained in private law is obvious in laws intended to protect the consumer from corporate powers, the tenant from the landlord’s abuse of power, the employee from exploitation by the employer and so on.25 Again, despite the similarities between the purposes of private law and the purposes of human rights laws, they are decidedly different purposes. Human rights laws may only be enforced against public officials and private laws may only be enforced against private parties. Thus, it can be included that human rights laws are intended to regulate state powers and the use of that power over the citizens within the state’s territory. Private laws are intended to regulate the manner in which private parties relate to one another and their properties and how they interact with one another. Human rights laws impose duties and covenants on the state in the context of relationships with the governed. Private laws impose duties and confer rights on private parties in the context of their relationships with one another. Conclusion Ultimately, human rights law is a part of public law which emerged with the creation of the state. Public law conferred upon states the authority to legislate and govern and thus regulates the relationship between the citizen and the state. Private law, on the other hand emerged as a method for creating a “private sphere” which is “free from the encroaching power of the state”. 26 Human rights emerged as a consequence of natural rights theories which advocated for constraining state power over the individual, his property and conscience. Private rights laws emerged as a method for organizing and regulating civil society. In this regard, private law confers upon private parties specific duties and rights intended to dictate the boundaries between acceptable behaviour in social and economic relationships between private citizens. Although some aspects of private law involve rights and duties vastly similar to human rights, the parallel between human rights and private laws is tenuous. Private parties are not at liberty to pursue claims against one another under human rights laws. Those laws are only applicable to state behaviour. Bibliography Articles/Journals Cherednychenko, Olha, O. ‘Fundamental Rights and Private Law: A Relationship of Subordination or Complimentary?” (December 2007) 3(2) Utrecht Law Review, 1-25. Dubinsky, Paul, R. ‘Human Rights Law Meets Private Law Harmonization: The coming Conflict.’ (2005)30 Yale Journal of International Law, 211-317. Gamwell, Franklin, I. ‘The Purpose of Human Rights.’ (Fall-Winter 2000) 29(2) Process Studies, 322-346. Horwitz, Morton, J. ‘The History of the Public/Private Distinction.’ (June 1982) 130(6) University of Pennsylvania Law Review, 1423-1428. Neiuvenhuis, Hans. ‘Fundamental Rights Talk: An Enrichment of Legal Discourse in Private Law?’ cited in Tom Barkhuysen and Siewert Lindenbergh (Eds). Constitutionalisation of Private Law. (Leiden, The Netherlands, 2006). Smits, Jans.‘Private Law and Fundamental Rights: A Sceptical View.’ Cited in Tom Barkhuysen and Siewert Lindenbergh (Eds). Constitutionalisation of Private Law, (Leiden, The Netherlands, 2006). Turner, Bryan. ‘Outline of a Theory of Human Rights.’ (August 1993) 27(3) Sociology, 489-512. Textbooks Andreopoulos, George, J.; Arat, Zehra F. Kabasakal and Juviler, Peter, H. Non-State Actors in the Human Rights Universe. (Bloomfield, CT: Kumarian Press, Inc.). Donnelly, Jack. Universal Human Rights in Theory and Practice, (Ithaca, NY: Cornell University Press, 2003). Fagan, Andrew. Human Rights: Confronting Myths and Misunderstanding. (Cheltenham, Glos: Edward Elgar Publishing Limited, 2009). Micklitz, Hans-W. The Many Concepts of Social Justice in European Private Law. (Cheltenham, Glos: Edward Elgar Publishing Limited, 2011). Hoffman, David. The Impact of the UK Human Rights Act on Private Law. (Cambridge, UK: Cambridge University Press, 2011). Waddams, S. M. Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning. (Cambridge, UK: Cambridge University Press, 2003). Weinrib, Ernest, Joseph. The Idea of Private Law. (Cambridge, MA: Harvard University Press, 1995). Statutes Human Rights Act 1998. Universal Declaration of Human Rights 1948. Cases Birmingham Midshires Mortgage Services Ltd. (BMMS) v Sabberwal (Sudesh)[2000] 80 P & C 256. Harrow LBC v Qazi [2004] 1 AC 983. Read More