European Review of Private Law

Volume 20 (2012)

Volume 20 (2012) / Issue 2

Bas De Gaay Fortman, 'Human Rights as Regulae Iuris: An Inquiry into the Dialectics of Legality versus Legitimacy' (2012) 20 European Review of Private Law, Issue 2, pp. 409–424


Abstract: This article discusses the role of human rights as general principles of law guiding judicial decision-making. After an introduction into the dialectics of legality versus legitimacy, it focuses on the Courts' need for public-political constituency that carries their judgments. It is in that context that the old regulae iuris have always played their part. Based on the overriding principle of universal human dignity human rights are conceived as modern rules of justice throwing light upon concrete cases. Although in terms of sheer legality their impact is rather trivial, a focus on legitimacy evidently enhances their impact. This is illustrated in regard to human rights in private law. In conclusion, a shift in emphasis from quasi-legal international procedures in semi-judicial UN Charter and Treaty bodies lacking any power to enforce their 'resolutions' and 'concluding observations', to human rights as general principles guiding judicial decision-making appears to be worth consideration.

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ISSN: 0928-9801
ID: ERPL2012024