The interaction of private rights and basic social rights (The normative justification of the horizontal effect of fundamental human rights in private rights)

Document Type : Original Article

Authors

• kamran karimzadeh ¹
• Zohreh shakiba ²
• Mohammad Shamei ³

¹ Kamran Karimzad, Senior Expert in Private Law, Islamic Azad University, Isfahan Branch (Khwarisgan), Isfahan, Iran

² Master of Public Law, Islamic Azad University, Mime Branch, Isfahan, Iran

³ Lecturer at Isfahan University and graduate of PhD in Public Law

Abstract

In this article, we will examine the normative justification of the horizontal effect of fundamental human rights in private rights. Justification here means reasons that are neither practical nor instrumental; Rather, they are merely cited as reasons that are proposed as the intrinsic and inherent logic of private rights. In the traditional doctrine, what is usually cited as the reason for applying the horizontal effect of fundamental human rights is the constitution: the text of the constitution specifies where and how fundamental human rights should be applied in private law relations. This answer means that human fundamental rights are logically or normatively alien to private rights and are in a different logical and normative origin from private rights. In contrast to this prevailing thought, in this section we will discuss that, first of all, private rights existed before fundamental human rights, and secondly, fundamental human rights are part of the normative and inherent logic of private rights. This discussion was raised to describe and explain a special class of democratic rights, which includes all human rights, in addition to anti-discrimination rights and classic civil rights. If the mentioned argument is convincing, it can explain why the fundamental human rights as well as their horizontal effects can be applied in the field of transnational legal regimes and through national courts or international courts. In this article, we will refer to the descriptive analytical method to explain this issue.

Keywords

• : fundamental human rights
• private rights
• fundamental social rights

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