BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

10 Business Corporations and the Constitutionalisation of Private Law

Pavel Ondřejek * The post-war period is marked by an increased influence of constitutionally protected fundamental rights in legal orders of states. Human rights are no longer described as ‘ monologues of a lawgiver ’ as Franti š ek Weyr , a leading Czechoslovak constitutional theorist, noted in 1937, 1 but they operate as hard law-imposing duties on states as well as private entities. The process of constitutionalisation of law nowadays seems inevitable and influences various branches of law. 2 In private law, the term ‘horizontal effect of fundamental rights’ covers several theories of the functioning of human rights, theories that are rather different and it may be even doubtful whether all of them may be covered by the single notion of ‘horizontal effect’. The horizontality of rights is one of the aspects of the broader phenomenon of constitutionalisation of private law which is again a more concrete version of constitutionalisation and judicialisation of the entire legal order. In the beginning, I should explain what I mean by the ‘constitutionalisation of law’. First of all, it is an ongoing process, not a final result of a completed process; secondly, it is a process of expanding the application of constitutional norms in various fields of law; and finally, this process has not only a normative but also its institutional aspect which consists in the (self-)reinforcing authority of constitutional or supreme courts. Constitutions play crucial roles not only because of their higher formal legal force in the hierarchy of sources of law, but also due to the programmatic character and value orientation of modern democratic states governed by law. 3 Luca Siliquini-Cinelli and Andrew Hunchinson speak of the fact that ‘[v]arious national and supranational human rights instruments have been developed and implemented in order to transition * Senior Lecturer, Faculty of Law, Charles University, Prague, Czech Republic. E-mail: ondrejek@prf.cuni.cz. ORCID: 0000-0001-6764-8993. This contribution was written within the Research Centre for Human Rights of the Charles University (Project No. UNCE 011). I would like to thank the participants of the workshop Business and Human Rights organized in Prague on 27 November 2017, where the previous version of this contribution was presented. 1 WEYR, F.: Československé ústavní právo. [ Czechoslovak Constitutional Law ]. Prague: Melantrich, 1937, p. 248. 2 MICKLITZ, H.-W.: Introduction. In: MICKLITZ, H.-W. (ed.): Constitutionalization of European Private Law . Oxford: Oxford University Press, 2014, p. 1. 3 In Germany this conception of state is referred to as materielles Rechtsstaat , i.e. a state which is not only governed by law and which regulates all important social relations by law, but also a state that acknowledges separation of powers, sovereignty of the people, protection of human rights and orientation of certain values (legal certainty, equality, human dignity, justice, solidarity, and certain others). See GERLOCH, A.: Teorie práva [ Legal Theory ]. 6. Ed., 2013, Plzeň: Aleš Čeněk, 2013, p. 201ff. JAKAB, A.: European Constitutional Language . Cambridge: Cambridge University Press, 2016, p. 121.

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