THE HORIZONTAL EFFECT OF HUMAN RIGHTS PROVISIONS, THE GERMAN MODEL AND ITS APPLICABILITY TO COMMON-LAW JURISDICTIONS

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Abstract:

Lawyers and legal academics in common-law countries who are seeking to define the approach that should be adopted in determining the effect of guarantees of human rights on the private law have already had the opportunity to acquaint themselves with the German 1 approach to these matters thanks to the detailed and interesting analyses provided by Professor Markesinis Q. C. and others. As in Germany, it would seem that in England (and in other common-law countries) a wide measure of agreement has been reached to the effect that the guarantees contained in instruments such as the Human Rights Act 1998 must have some effect on the development of the private law. The debate has tended to concentrate on the question whether the effect should be “direct” or “indirect” as well as on the question whether new private causes of action, such as a privacy tort, could be based directly on the Human Rights Act. This reproduces a similar debate in Germany which took place in the 1950s and which was resolved, for a time, by the German, Federal Constitutional Court's Lüth judgment of 1958. Under this approach, constitutional rules are said not to control, but merely to influence the development of the private law, and thus their effect is indirect rather than direct.

Keywords: Commercial Agent Case; Common-Law; German Model; Human Rights; Human Rights Act 1998; Private Law; direct; indirect

Document Type: Research Article

Publication date: January 1, 2002

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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