What Constitutions Can Do (But Courts Sometimes Don't): Property, Speech, and The Influence of Constitutional Norms on Private Law. CES Working Paper, no. 110, 2004

Gerstenberg, Oliver. (2004) What Constitutions Can Do (But Courts Sometimes Don't): Property, Speech, and The Influence of Constitutional Norms on Private Law. CES Working Paper, no. 110, 2004. [Working Paper]

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Abstract

Against the background of the ECtHR's recent decision in Appleby v UK (a European “counterpart” to the well-known US Supreme Court decision in Marsh v Alabama) the paper addresses, first, the issue of the influence, often perceived as dilemmatic, of human rights norms and constitutional norms on private law. In a second step, then, the paper discusses the promise—and a possible dilemma—of “comparative constitutionalism” as an engine of a more denationalized “constitutional patriotism”: the dilemma that we trade the “closure” of domestic exceptionalism against the new, systemic “closure” of “too much” judicial comity and professionalism, the closure of a new Juristenrecht.

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