This contribution discusses some aspects of "human dignity" in private law. There is every reason to do so: the concept of human dignity is being used more and more in private law proceedings before civil and constitutional courts around the world. In addition, there is an ongoing debate on how concepts like public order, good morals and fundamental rights relate to efforts to harmonize private law. The question I try to answer is to what extent such concepts are suited for legal harmonization[1] or, in other words, to what extent there is one universal idea of public policy or human dignity in the field of private law.
The concept of public order (ordre public) is used in many private law systems to refer to the most fundamental principles this system recognizes: the social, moral, political and economic values that tie society together.[2] The public policy argument usually comes to the surface in conflict of law cases, where a court is not to apply a foreign law if it is contrary to national public policy.[3] But also in purely domestic cases public policy plays an important role. This is particularly true in the law of contract, where party agreements may infringe upon fundamental principles of society.[4] This is reflected in many provisions in national civil codes. Thus § 138 of the German Civil Code declares void a legal transaction that violates good morals (gute Sitten), while art. 3:40 of the Dutch Civil Code follows arts. 6 and 1133 of the French Code Civil in limiting the effect of a contract violating good morals (bonos mores) or public order. Articles 7 and 2030 of the Louisiana Civil Code also hold that contracting cannot go beyond the limits of the public order. This is not different in the common law world, where a similar mechanism exists to prevent certain contracts from being enforced.[5]
In most[6] national jurisdictions, there has never been much discussion on how to define these concepts of public order and good morals: they are black boxes, to be filled by experienced Rechtshonoratioren, but almost impossible to describe in any detail. The prevailing view in most jurisdictions is that these concepts refer to unwritten norms that are regarded as fundamental in society. This is well reflected in the famous Lüth decision[7] of the German Constitutional Court, in which the court held that public order and good morals are only general clauses that still need to be filled with values.[8]
In order to get some idea of where public order and good morals come into play, it may be useful to mention some categories of cases. Following the German Fallgruppen approach,[9] one can think of the familiar cases of onerous exemption clauses or abusive contracts (e.g., usury). Many legal systems now deal with these cases on the basis of good faith, but traditionally these types of contracts were struck down as being contrary to public policy or good morals. Another category of cases consists of the protection of the "moral" and public order, on the basis of which certain agreements about, for example, marriage, divorce, surrogate motherhood, adoption and prostitution may be declared invalid. Also, contracts which interfere with the administration of justice fall under this category.[10] A third type of agreements concerns those in which the personal or economic freedom of individuals is unduly restricted. Contracts about fundamental rights such as privacy or freedom of religion, contracts in restraint of trade and onerous non-competition clauses are usually seen as falling under this category.
Over the last few decades, the concept of public policy has been filled more and more with so-called "constitutional values;" values derived from fundamental rights enshrined in national constitutions or in international conventions such as the European Convention on Human Rights. In Germany, the Lüth decision of the German Constitutional Court paved the way by holding that the general clause of public policy should be filled with the values enshrined in the German Constitution. This led to a whole range of cases in which fundamental rights were applied to private relationships.[11] The best-known cases are probably Handelsvertreter,[12] Bürgschaft[13] and Hohenzollern.[14] But also in other European countries, this "constitutionalization" of private law is on the rise.[15]
To me, the most interesting aspect of this constitutionalization is not so much that specific fundamental rights are being invoked in private relationships, but
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that in defining what public policy means, more and more reference is made to "human dignity." One example of this is the German Bürgschaft case itself,[16] in which a young woman provided a bank with a personal guarantee for a debt of her father. When her father went bankrupt, the bank claimed 100.000 DM from her. She refused to pay, claiming she did not know this was the consequence of her signing the contract. The German Bundesgerichtshof held that the bank could invoke the guarantee, but the daughter succeeded in her appeal to the German Constitutional Court. The court held that the civil court had violated the daughter's right to human dignity (laid down in art. 1 of the German Constitution)[17] by holding her to the contract. In deciding this case, the court found important that the bank had not informed the daughter properly about the consequences of the guarantee. In addition, in other European countries, human dignity is now used to define what public policy means.[18]
In the remainder of this contribution, I will try to answer the question to what extent there is a "transnational" concept of human dignity or even of public policy in general.[19] Terms such as fundamental rights or human dignity suggest the existence of some universal idea of justice. If this is true, they can play an important role in the European harmonization process and they could even form a barrier against the negative effects of globalization: if there would be one uniform concept, it would mean that legislators and courts all over the world would apply it in more or less the same way, perhaps protecting weaker parties against the excrescences of capitalism.[20] But if such a universal concept does not exist, we should stop claiming that the use of fundamental rights in private law offers any real guidance in the harmonization process.
My inquiry into the harmonizing effect of the concepts of human dignity and public policy takes place at four different levels. First, I will have a look at some rules in the field of international contract law, including the relatively new sets of soft law principles. Second, some case law of the European Court of Justice is taken into consideration. A third level of inquiry concerns a representative case of the Human Rights Committee of the United Nations. Finally, the question is raised whether there are uniform interpretations of human dignity at the national level.
The first level of analysis concerns international instruments in the field of contract law. If any attempt at harmonization of public policy can be expected, it should be here. However, the prevailing approach of these instruments is that they do not adopt provisions on public policy or on illegal or immoral contracts. This is true for both the 1980 Vienna Convention on the International Sale of Goods (CISG) and the 1994 Unidroit Principles of International Commercial Contracts. The drafters of the Unidroit Principles are clear about the reason for this: "the reason for (... ) exclusion lies both in the inherent complexity of questions of status, agency and public policy and the extremely diverse manner in which they are treated in domestic law."[21] This is different with the Principles of European Contract Law (PECL); although the drafters of the PECL first shied away from dealing with illegal and immoral contracts,[22] they eventually decided to include a Chapter 15 in Part III.[23] Art. 15:101 now reads that "a contract is of no effect to the extent that it is contrary to principles recognized as fundamental in the laws of the Member States of the European Union." The article deliberately avoids any reference to public policy or morality,[24] but this does not solve the problem of establishing what is meant with these "fundamental" principles. The approach of the PECL is one of looking at European sources: guidance should be obtained from the EC Treaty (e.g., the provisions on free movement of goods) and fundamental rights as laid down in the European Convention on Human Rights, and in the European Union Charter of Fundamental Rights. National concepts of public policy should not be used to define their meaning.[25] It seems to me that this is a rather problematic view of establishing what public policy means: in the absence of any European norms or rules of morality that goes beyond the obvious generalities (such as the prohibition of the death penalty and torturing), it seems impossible to establish what it means. The norm that contracts against public policy should have no effect may be universal,[26] but it should be filled with national conceptions of what these fundamental principles mean.
A second line of inquiry is to consider the case law of the European Court of Justice (ECJ). This case law makes clear that the ECJ does not aim at creating one European concept of human dignity. In its Omega case,[27] the ECJ had to establish whether the freedom to provide services (guaranteed in arts. 49 and 55 of the EC Treaty) could infringe upon constitutional values. In this case a German company bought a socalled "laserdrome" from an English company. In this laserdrome, people could use laser guns to "kill" other players. The German authorities found this game to be against human dignity and shut down its operation. This was approved of by the ECJ, but the ECJ refused to relate this to a European conception of human dignity. It held that "the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one
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era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty (...)."[28] The bottom line is that member states are allowed to think differently about what human dignity requires. This is in line with constant case law[29] in which the ECJ holds that, within certain limits, member states are allowed to protect their most fundamental values. This is still true today, even though there is now a tendency to limit the member states' freedom to decide what their national public policy consists of.[30]
Thirdly, it is useful to refer to a case decided by the Human Rights Committee of the United Nations. Mr. Manuel Wackenheim is a French citizen who suffers from dwarfism: he is only 1.14 m tall. He earned his living by working in a discotheque where he was employed by allowing himself to be thrown short distances onto an airbed by the clients of the discotheque (so-called "dwarf-tossing"). When the local authorities prohibited this practice, the French Council of State approved of this,[31] holding that dwarf-tossing violates human dignity. This left Mr. Wackenheim without a job. The Human Rights Committee of the United Nations supported the view of the French authorities.[32] But this outcome is debated;[33] it can also be argued that the violation of Mr. Wackenheim's human dignity consist in not allowing him to work in the way that he chooses, thus violating his rights to freedom of contract and employment. Viewed this way, human dignity is not about protection of a supposedly weaker person, but about ensuring the autonomy of contracting parties that can very well look after themselves.[34] This makes clear that there are often competing views of what human dignity entails. If a private person invokes the protection of a fundamental right, the other party can almost always also invoke a fundamental right itself. In the Bürgschaft decision, the daughter could invoke human dignity or her right to exercise her private autonomy, but as a defense the bank could invoke its autonomy or freedom of contract as well. It is difficult to solve such a conflict of fundamental rights in a universal way. The truth is that, at least among private parties, both these rights are expressions of what we consider to be just societal norms: we value both autonomy and human dignity. But what should prevail among these private parties is often unclear, and in any event something that may be decided in different ways in different countries. The simple reference to human dignity is not helpful here.
Finally, all this raises the question of whether human dignity can offer any real guidance to decide a case at the national level. I have expressed doubts about this in a previous article.[35] My argument was based on the well known wrongful birth cases. The highest courts of the United Kingdom, Germany and the Netherlands have all referred to the argument of human dignity in relation to the general personality right of the healthy child in deciding whether the parents have a claim for damages against the doctor who is responsible for the birth of that child. But this is far from providing the court with a criterion to decide such cases. Thus, the first senate of the Bundesverfassungsgericht allowed the claim,[36] but the second senate of the same court has, in a case on abortion,[37] held that to regard the existence of a child as a ground for damages is contrary to human dignity and therefore a violation of art. 1 of the German Constitution.
This uncertainty about what human dignity requires - and whether human dignity should play a role at all - is also apparent from a comparison of the Dutch and English wrongful birth cases. While the Dutch Supreme Court allowed the claim for damages on basis of the argument that it is not the child itself that is being regarded as damage but only the costs of raising that child,[38] the House of Lords expressed the opposite view. In the MacFarlane case, Lord Steyn held:[39] "Instinctively, the traveler on the Underground would consider that the law of torts has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing. (...) Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the cost of bringing up the child from a health authority or a doctor. (...)." But the opinion of Lord Millet in the case of Darlington Memorial Hospital v. Rees[40] reveals one can think differently about this. Lord Millet stressed the autonomy of a party: "I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law."
The conclusion out of this four-tier analysis must be clear: the notion of human dignity is inherently vague. Because of the existence of competing notions of what it entails, making use of this concept will not lead to uniform outcomes in similar cases.
It was made clear in the above that there is no universal or "transnational" concept of human dignity or
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even of public policy. These concepts are essentially local and we should not try to harmonize them on basis of common principles or rules. But this does not mean the concept of human dignity should be abandoned altogether. In my view, the convergence of private law should primarily be a convergence of arguments: instead of finding common principles and rules or deciding cases in a uniform way, we should ensure that similar arguments are used by legislators, judiciaries and academics from different countries.[41] In this international argumentative community the argument of human dignity can have a distinctive role: to invoke it is a warning sign that the very conditions for a meaningful human life[42] come into danger. The German Bürgschaft case illustrates this well: the reference to art. 1 of the German Constitution made the court realize what the consequences were of enforcing the contract. But as soon as human dignity has fulfilled this role of a warning sign, the case itself should be decided on basis of more substantive arguments. Let this also be the case in our age of globalization. ■
NOTES
* This article was previously published in: Essays in Honor of Saúl Litvinoff, Baton Rouge 2008 (Olivier Moréteau, Julio Romanach, Alberto Zuppi, eds.), 749-760.
[1] For a general view of the harmonisation process in the European Union, see Jan M. Smits, Convergence of Private Law in Europe: Towards a New Ius Commune?, in Comparative Law: A Handbook 219 (Esin Örücü & David Nelken eds., 2007).
[2] Cf. Belgian Cour de Cassation, December 9[th], 1948, Revue Critique de Jurisprudence Belge 1954, 251: "the legal foundations (...) of the ethical, political, economic and social (...) society."
[3] Cf. Petra Hammje, Droits fondamentaux et ordre public, 86 Revue critique de droit international privé 1 (1997)
[4] Cf. the overviews by Konrad Zweigert & Hein Kötz, Introduction to Comparative Law 380 (3d ed. 1998); Reinhard Zimmermann, The Law of Obligations 697 (1990); and Hein Kötz, Die Ungültigkeit von Verträgen wegen Gesetz - und Sittenwidrigkeit - eine rechtsvergleichende Skizze 209 (1994)
[5] Cf. H.G. Beale, W.D. Bishop & M.P. Furmston, Contract: Cases and Materials 1055 (4th ed. 2001)
[6] An exception is Germany, where there is a lively debate on how to define good morals and where various Fallgruppen were defined. See, with many details, V. van den Brink, De rechtshandeling in strijd met de goede zeden 142 (2002).
[7] BVerfGE 7, 198 at 215-216.
[8] According to the German Constitutional Court, public order refers to "Prinzipien, die aus Gründen des gemeinen Wohls auch für die Gestaltung der Rechtsbeziehungen zwischen den einzelnen verbindlich sein sollen und deshalb der Herrschaft des Privatwillens entzogen sind". (BVerfGE 7, 198 at 206)
[9] See Münchener Kommentar zum BGB, Bd. I, § 138, Rn. 26 ff. (Mayer-Maly), and Basil Markesinis, Hannes Unberath & Angus Johnston, The German Law of Contract 247 (2d ed. 2006), both distinguishing more categories than listed here.
[10] Cf. art. 15:101 PECL, Comment B, in Principles of European Contract Law Part III 212 (Ole Lando et al. eds., 2003)
[11] See the comprehensive overviews by Olha Cherednychenko, Fundamental Rights, Contract Law and the Protection of the Weaker Party (2007), Chantal Mak, Fundamental Rights in European Contract Law (2007) and Fundamental Rights and Private Law in the European Union (Gert Brüggemeier et al. eds., 2007)
[12] BVerfGE 81, 242.
[13] BVerfGE 89, 214.
[14] BVerfG March 22[nd], 2004, NJW 2004, 2008
[15] Cf. Markesinis, Unberath & Johnston, 37 The German Law of Contract, Jan Smits, Constitutionalisering van het vermogensrecht (2003) and id., Private Law and Fundamental Rights: A Sceptical View, in 9 Constitutionalisation of Private Law (Tom Barkhuysen & Siewert Lindenbergh eds., 2006)
[16] BVerfG October 19[th], 1993, NJW 1994, 36.
[17] Art. 1 s. 1: "Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt." Human dignity is also codified in several other national constitutions, including those of Belgium (art. 23) and South Africa (arts. 1 and 10). Also see art. 1 of the European Union Charter of Fundamental Rights.
[18] See the references in note 18.
[19] See also Chantal Mak, Harmonising Effects of Fundamental Rights in European Contract Law, 1 Erasmus Law Review 59 (2007)
[20] Cf. Study Group on Social Justice in European Private Law, Social Justice in European Contract Law: a Manifesto, 10 European Law Journal 653 (2004)
[21] Unidroit Principles of International Commercial Contracts, Rome 1994, Comment to art. 3.1 (p. 64)
[22] See Principles of European Contract Law, Parts I and II (Ole Lando & Hugh Beale eds., 1999) art. 4:101: "This chapter does not deal with invalidity arising from illegality, immorality or lack of capacity."
[23] Principles of European Contract Law Part III (Ole Lando et al. eds., 2003)
[24] Hector L. MacQueen, Illegality and Immorality in Contracts: Towards European Principles, in Towards a European Civil Code 415, 417 (Arthur Hartkamp et al. eds., 3d ed. 2004): is meant "ordre public."
[25] Art. 15:101, Comment B (211 et seq.). See now also art. II-7:301 of the draft Common Frame of Reference.
[26] Cf. for example also art. 52 s. 4 of the Chinese Uniform Contract Law Act 1999
[27] C-36/02 Omega Spielhallen - und Automatenaufstellungs - GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, [2004] ECR I-09609.
[28] C-36/02, Para. 31.
[29] Case 30/77 Regina v. Pierre Bouchereau [1977] ECR 1999 and the subsequent case law summarised by Catherine Kessedjian, Public Order in European Law, 1 Erasmus Law Review 25, 29 (2007)
[30] Cf. art. 3 (4) of Directive 2000/31/EC on electronic commerce, OJ L 178/1, in which public policy is concretized by examples, and Kessedjian, o.c., at 29 et seq.
[31] Cne de Morsang-sur-Orge, 1995 Dalloz 257.
[32] Manuel Wackenheim v. France, Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002)
[33] Cf. about the dilemma between paternalism and autonomy, e.g., Gerald Dworkin, Moral Paternalism, Law and Philosophy 305 (2005); and Joel Feinberg, Harm to Self (1986)
[34] Cf. Immanuel Kant, Grundlegung zur Metaphysik der Sitten 62 (Karl Vorländer Hrsg., 6. Aufl., 1933): "Autonomie ist also der Grund der Würde der menschlichen und jeder vernünftigen Natur."
[35] See Jan M. Smits, Private Law and Fundamental Rights: A Sceptical View, o.c., 9.
[36] BVerfGE 96, 375.
[37] BVerfGE 88, 203.
[38] Hoge Raad February 21[st] ,1997, Nederlandse Jurisprudentie 145 (1999)
[39] MacFarlane and Another v. Tayside Health Board, [1999] 4 All ER 963.
[40] Darlington Memorial Hospital v. Rees, [2004] 1 AC 309.
[41] See Jan M. Smits, Contract Law in the European Union: Convergence or Not? in Sammelband 4. Europäischer Juristentag, Wien 2008, 45-65.
[42] Cf. the German concept of "Existenzgrundlage."
Lábjegyzetek:
[1] The Author is a Professor of European Private Law, Maastricht University and Research Professor of Comparative Legal Studies University of Helsinki.
Visszaugrás
