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1 Fundamental Rights Talk an Enrichment of Legal Discourse in Private Law?

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Chapter Summary

In her book RIGHTS TALK, the impoverishment of Political Discourse Mary Ann Glendon attacks the predominance of the rhetoric of rights in American political discourse. In this chapter the author advocates an opposing view: FUNDAMENTAL RIGHTS TALK, an enrichment of legal discourse in private law. In private law the most insistent and unending desire is the desire for money; money to be collected by means of claims for damages. In the Netherlands this eagerness to claim compensation is commonly labeled 'The Claim Culture', or simply 'The American Way'. Private law is based on a set of ideas about fundamental rights. Property and contract can only be understood as concepts stemming from the fundamental right to selfdetermination. From this pivotal role of fundamental rights in private law it follows that the 'constitutionalisation' of private law by giving horizontal effect to vertical public law rights cannot be but a transitional affair.

Keywords: American political discourse; constitutionalisation; fundamental rights; legal discourse; Netherlands; private law



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