Hugh Collins, ‘Private Law, Fundamental Rights, and the Rule of Law’

INTRODUCTION
… My aim in this lecture is to explain the concept of the constitutionalization of private law and to consider why it is controversial and even feared. I will set out, in particular, five concerns frequently voiced against the movement in legal reasoning towards the constitutionalization of private law. I will then explain why I think that the concerns of the critics tend to be exaggerated and the challenges to existing private law relatively minor. As well as viewing this fear of the constitutionalization of private law as largely misplaced, I shall argue that this movement for the constitutionalization of private law is potentially beneficial in the sense that it provides a mechanism by which the common law can be adjusted to modern values, including the values of liberty, equality, and democracy. Moreover, I shall argue that the constitutionalization of private law forms part of a broader intellectual movement to reconceive the foundations of the legal system not in terms of a closed system of rules but rather as a coherent body of individual rights.

Hugh Collins, Private Law, Fundamental Rights, and the Rule of Law, 121 West Virginia Law Review 1 (2018).

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