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Email this citationCIAO DATE: 10/04
What Constitutions Can Do (But Courts Sometimes Don't):Property, Speech, and The Influence of Constitutional Norms on Private Law
Oliver Gerstenberg
Working Paper No. 110
May 2004
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.
