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4 Applicability Of Fundamental Rights In Private Law: What Is The Legislature To Do? an Intermezzo from a Constitutional Point of View

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Chapter Summary

In modern discussions on the effects or impact of fundamental rights (be it basic rights, human rights, or human rights related principles) on private law there are basically two positions. Either fundamental rights appear as an exogenous factor to the system of private law or as an endogenous factor. Activism on the part of the legislature may be a tell-tale sign contributing to the notion that fundamental rights in fact are exogenous to modern day private law. Strong reliance on case law and jurisprudence as the mechanism for fundamental rights protection in private party relations on the other hand may support the endogenous position. This chapter gives very sketchy survey regarding this question. The analysis is based on developments in recent Dutch constitutional history and doctrine.

Keywords: Dutch constitutional history; fundamental rights protection; legislature; private law



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