Human Rights were originally conceived as rights and freedoms vis-à-vis the State and other public authorities. Their very fundamental purpose was to protect the individual against the omnipotent state with its vast powers of detention, expropriation and censorship. The major function of human rights was therefore to mitigate the imbalance between two unequal parties, the public authority and the individual. Over the years since their conception, the focus of human rights theories has evolved towards an increasing demand for positive state action to realise specific rights. The main addressee, however, remains the state: on account of its monopoly on power, the state has the responsibility to establish a legal framework within which each individual may enjoy their rights, protected from interference by other individuals or that same state. In this respect, human rights constitute an integral part of public law.

At the same time, however, to assist the states’ efforts, it is necessary to understand the established legal framework in the light of that state’s obligations to secure human rights, regardless of whether this obligation flows from constitutional law or is international in nature. Precisely how and to what extent this is done depends on each state’s constitutional law, its view on the relationship between national and international law, the accepted legal method and other factors, and may consequently vary between states. Even so, one thing is clear: human rights can no longer be construed as an exclusively public law phenomenon. They exercise a clear influence also on the domain of private law, whether as inspiration and guidelines for the legislator, as factors for the interpretation of ordinary legislation, as limitations on the application of legislation to certain cases, or in other ways.

When integrating human rights into private law it is necessary to take into account the position of private parties vis-a-vis one another, as considerations come into play which differ strongly from those influencing the relationship between the state and its citizens. Private law, which regulates their legal relationship, is predicated in practically all modern societies on the theory of equality before the law. The imbalance in legal power, which characterises public law, does not exist in private law.

This equality is, of course, formal in nature. It relates merely to the legal rights and freedoms of the parties. It does not eliminate the possibility of an imbalance between the parties in other aspects, such as their relative wealth, economic power or mental ability. Moreover, equality before the law does not mean that the same rule serves parties in an equal manner. There thus is a need to balance the interests of the groups involved. It is the responsibility of the state to establish a framework for this balancing exercise and to ensure its enforcement be means of substantive legislation, systems for conflict resolution, procedural rules, and so forth. When establishing this framework and applying it to conflicts between private parties, the state needs must take into account its human rights obligations. Consequently, the state’s human rights obligations indirectly become relevant also for private parties as they seek to abide by the established legal framework – obviously, they should apply the rules given by the state in the same manner as the courts would in case of a conflict, which means that they, too, have to take human rights into account both in their interpretation and application of the law. Moreover, while the introduction of human rights into private law does carry with it many concepts that are already well established in private law, it also brings with it values to which private law has hitherto attributed little weight. Private law will have to adapt to these values and, consequently, is likely to undergo a considerable transformation. Indeed, this is not a new idea. Private law has always recognised that the rights and freedoms of one person must necessarily be limited by those of others and that the interests of societies’ members must be balanced in a way that appears fair and reasonable. Courts and scholars have frequently exalted the specific rights and freedoms under private law.

The fundamental principle of contract law, pacta sunt servanda, may be considered an aspect of the right to property, while party autonomy and the freedom to enter into contracts of any kind according to one’s desire is an important part of one’s right to private life.

A legal prohibition against certain types of contract may likewise be considered part of the protection of individuals’ human rights. Provisions regulating working hours protect one’s private and family life, and coupled with provisions ensuring the right to cancel a running labour contract form part of the regime protecting individuals against slave labour (Art. 4 of the European Convention on Human Rights (ECHR)). The right to full restitution in the case of expropriation of one’s property which since 1814 has been enshrined in § 105 of the Norwegian Constitution is in essence tort law (as tort law determines what constitutes full restitution), but at the same time also an expression of the human right to property – the state may still take your property if the need of society so warrants, but not without full compensation. The same private law regulation may also touch upon several human rights. Inheritance law securing a minimum inheritance to one’s direct descendants, for example, is on the one hand a protection of the family and private life of the heirs (Art. 8 ECHR), in so far as it prevents another from imposing limitations on the actions of their heirs. On the other hand, however, it is also a (justified) interference with the right to property of the testator, just as the right to establish a last will and testament may be considered an exercise of one’s right to property.

This illustrates an important aspect of private law: the need to balance the conflicting interests of two private parties. Even though human rights still mainly focuses on the relationship between the state and the people on its territory, rather than the relationship between private parties, the need to take the interests of third parties into account is becoming increasingly obvious in a growing number of cases. The classical example is the relationship between the right to privacy on the one hand (Art. 8 ECHR) and the freedom of speech on the other (Art. 10 ECHR), but other human rights can also come into conflict with one another. In private law, this difficult balancing of interests becomes the responsibility of the private parties themselves. For example, if a woman’s violent ex-husband wants to take possession of a house on the estate where she lives with their children, the board of the estate, when deciding whether to approve him as a tenant, must balance his right to freedom of movement within the state’s territory, his right to choose were to live as part of his right to private and family life, as well as his right to property, against her right to private and family life in the form of physical security, right to enjoy her property, etc, as well as her right to freedom from inhuman or degrading treatment. In other words, the legal framework which has been established by the state for the purpose of balancing the interests of new and existing (possibly objecting) tenants must be understood and applied, in the relationship between the private parties, in the light of the state’s human rights obligations if it is to achieve its intended effects.

The above considerations and examples show that while there seems to be a growing consciousness about human rights issues causing human rights to be relied on more frequently and in seemingly new ways, private law has always been concerned with human rights, though without actually using this term. Human rights have played a role even in the context of such mundane topics as contract interpretation, inheritance law, nuisance, libel and negligence. Those working in the field – as the participants intend to in the course of an international seminar – find themselves in a position similar to that of M. Jourdain in Molière’s comedy ‘Le Bourgois Gentilhomme’, who was greatly surprised to learn that he had been speaking prose all his life even when asking for slippers or nightcap. Hence, the transformation we are witnessing may be considered merely terminological in nature and traditional issues will appear in the guise of human rights. However, the language we employ is not merely a tool to convey thoughts: it is a process that affects our analysis and conceptions. Hence, a change in terminology may have a more profound effect than the mere replacement of one word with another.