How human rights have influenced Maltese civil liability jurisprudence

Abstract

In most continental jurisdictions a significant influence of human rights on private law is an increasingly noticeable trend and is associated with an adventurous and creative approach to judicial interpretation. Thus the Italian courts have interpreted coda) provisions on delictual liability in the light of the constitutional right to health and developed new categories of compensable damage such as danno biologico. In France the courts have invoked the concept of human dignity to annul a contract concerning 'dwarf throwing'; holding that insofar the object of this contract contradicts human rights values, it is also immoral, unlawful and against public policy. German jurists have theorised this approach, which they call indirect Drittwirkung; basing it upon the twin assumptions that: (i) the courts cannot avoid interpreting private law when they apply it and (ii) that they generally have a choice whether to opt for a more, or less, 'constitutionally compliant' interpretation of a specific legal provision. Opting for the less constitutionally compliant interpretation is seen as wrongheaded. Ipso facto such a choice fails to respect the substantial unity of the German legal system; which is authoritatively considered as a seamlessly blended and internally non-contradictory set of rules. German jurists consider that it would be highly eccentric to assume that the values which motivate the BGB, for example, contradict the values which motivate the Constitution and therefore one should -if at all possible- adopt an interpretative stance which reconciles the two legal texts.