A comparative approach to the application of human rights in the private law sphere

Abstract

The discussion on the application of human rights in the private law sphere has been gaining momentum in many European jurisdictions and various models have started to emerge, proposing alternatives of how Courts may apply fundamental rights in private law matters. Judgments of the European Court of Human Rights in Strasbourg have also started to express a willingness for the Convention to play a more prominent role in private law. In light of this, Professor Aurelia Colombi Ciacchi presents a taxonomy of European legal families that classifies States according to their mode of application of fundamental freedoms in the interpretation of private law. This is heavily reliant on the principles that formulate the legal system, thus, this term paper identifies three jurisdictions that outline the main principles of each family, namely Germany, Britain and France, and seeks to identify the leading theories that Courts and jurists appear to be adopting. A study of the Maltese legal system is then carried out, followed by a comparative analysis of the three jurisdictions and the approach that the Maltese Courts appear to be taking. This is done in an attempt to classify Malta with one of the legal families proposed by Ciacchi.