Judicial Governance in European Private Law: Three Judicial Cultures of Fundamental Rights Horizontality

This article sketches and compares, in the light of the author's approach to judicial governance, different models of application of fundamental rights by civil courts. It proposes a taxonomy of three cultures of fundamental rights horizontality: (1) the post-authoritarian culture, (2) the old continental culture, and (3) the Nordic-insular culture. The first culture is characterized by a relative distrust in Parliament, a relatively strong judicial activism, and the primacy of national constitutional rights. It can be observed in relatively young continental European democracies that had transformed themselves into totalitarian or authoritarian regimes at some point in the 20th century, such as Germany, Italy, Portugal, Spain, and new EU Member States such as Poland. The second culture is characterized by a relative trust in Parliament, a moderate judicial activism, and the primacy of international human rights. It can be observed in France and the Benelux countries, which are old continental European democracies that did not transform themselves into authoritarian regimes in the 20th century. The third culture is characterized by judicial restraint and the difficulty to internalize international human rights law. It can be observed both in the Nordic countries and in the UK, which are old European democracies based on non-continental constitutional models.