1. The standard assumption is reiterated by Louis Henkin: “Human Rights, 1 stress, are rights against society as represented by government and its officials by group definition” in Louis Henkin, The Rights of Man Today (London: Stevens & Sons, 1979) at 2.

2. Michael J. Horan, “Contemporary Constitutionalism and the Legal Relationship Between Individuals” (1976) 25 Int’l. & Comp. L.Q. 848 at 851, writing on the theme of the effect of contemporary constitutionalism on the legal relationship between individuals, concludes: “… as far as constitutionalism is concerned, the classical position of the individual vis-a-vis other individuals still persists. It is still the state, acting through law, which is to shoulder these new social and economic responsibilities, not private individuals, groups or associations.”

3. Lawrence H. Tribe, Constitutional Choices, (Cambridge, MA: Harvard University Press, 1985) at 246.

4. Retail Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174.

5. Andrew Clapham, Human Rights in the Private Sphere (Oxford: Clarendon Press, 1993) at 91.

6. Ibid, at 214.

7. See Peter E. Quint, “Free Speech and Private Law in German Constitutional Theory” (1989) 48 Maryland L. Rev. 247 at 258–65.

8. Hevra Kadisha, Jerusalem Burial Company v. Kestenbaum 46 (2) P.D.464, 530, per Aharon Barak, J. (hereafter: The Kestenbaum Case). See also Aharon Barak, “Protection of Human Rights in Private Law” in A. Barak, ed., Book to Klinghofer on Public Law (Jerusalem: Sacher Institute, 1993) at 163.

9. Barak, supra note 8 at 164, 177.

10. Barak, supra note 8 at 177; Brian Slattery, “The Charter’s Relevance to Private Litigation: Does Dolphin Deliver?” (1987) 32 McGill L. J. 905.

11. Slattery, supra note 10 at 917, 922.

12. Jochen. A. Frowein, “Fundamental Human Rights as a Vehicle of Legal Integration in Europe”, in Capalletti, Seccombe, & Weiler, Integration through Law: Europe and the American Federal Experience (Berlin: Walter de Gruyter, 1986) at 573.

13. Tribe, supra note 3 at 264–65.

14. Macdonald, “Postscript and Prelude—the Jurisprudence of the Charter: Eight Theses” 4 Sup. Ct. L. Rev. (1982)321,347.

15. Barak, supra note 8 at 175.

16. Clapham, supra note 5 at 136 and at 348–49.

17. Barak, supra note 8 at 207.

18. See Jean Rivero, “La Protection des droits de l’homme dans les rapports entre personnes privees” Renée Cassin iii 311 at 322; (quoted in Clapham, supra note 5 at 90; Pieter van Dijk and Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (Deventer: Kluwer Law and Taxation Pub, 1984) at 15–16.

19. See similarly Horan, supra note 2 at 849.

20. Clapham, supra note 5 at 134–35.

21. The Kestenbaum Case at 531.

22. Barak, supra note 8 at 198.

23. In the words of Horan, supra note 2 at 848: “Formulated, as it was, during the 17th and 18th centuries when statist absolutism was perceived as the primal threat to individual liberty, modern constitutional theory at heart concerns limitations on government.” See A. Luini del Russo, “The Human Person and Fundamental Freedoms in Europe” (1965) 11 (2) Howard L.J. 420; Del Russo reviews the development of the concept of fundamental freedoms from classical times and shows how at all stages the concept derived from the prevailing view of the relationship between the individual and the community or, later, the state. The Greek city state bestowed civil rights, e.g., right to vote, right to trade, to marriage and the right to the access to justice but these were restricted to citizens. The Roman law established equitable remedies to secure and protect the individual rights of those who did not enjoy a full measure of citizenship. With the fall of the Roman Empire, “the fragmentation of the existing system of law and the rigidity of the feudal system wiped out almost entirely any concept of rights and remedies of the individual vis à vis his ruler. The history of modem political thought begins with the scientific dissection of the concept of the State by Machiavelli …. and in the Renaissance and Reformation, assertion of the right of the free mind to investigate and solve all the problems pertaining to human nature brought about an intrinsic growth of the intellectual dignity of man as an individual”. In Europe the initial shift was in the writings of jurists and statesmen—such as Montesqiueu and Rousseau, who developed the ‘by group’ definition “awareness of the existence of human freedoms that demanded recognition and protection”. Luini del Russo concludes that this idea became a living reality in the legal and political world of the British colonies as a result of the American Declaration of Independence, which established the constitutional precept that “all men are created equal and are endowed with liberties inherent to the human person and paramount to the powers of the state; and the state is an entity created by the people….” at 429.

24. Horan supra note 2 at 849: “… (T]he point is, however, that interpersonal and intergroup relations in constitutional systems are almost entirely matters for ordering by legislatures, judges and administrators, rather than constitution-writers. It is to statutory, administrative, and judge-fashioned rules that individuals must look for security in their fundamental rights from the possible depredations of other members of the community—not to constitutional canons.”

25. Horan, supra note 2 at 860.

26. Clyde W. Summers, “The Privatization of Personal Freedoms and Enrichment of Democracy: Some Lessons from Labour Law” (1986) U. 111. L. Rev. 689 at 697, 708–12, 722–23.

27. Summers, ibid, at 723.

28. Barak, supra note 8 at 182–83.

29. Clapham, supra note 5 at 146.

30. The Kestenbaum Case at 533.

31. Barak, supra note 8 at 183.

32. In the case of Justice Barak, this is apparently a conceptual choice and not an oversight. This is seems to follow from his criticism of a proposed provision in an Israeli Bill for a Basic Law on Human Rights that “human rights may not be used for the purpose of… suppressing human rights”; this provision is, he argues, “too narrow and should be extended to read that no human right may be used except in a way that is consistent to a proper extent with the human rights of any other person. Thus the human right of A is limited by the human right of B even if A does not wish to suppress the right of B, and his only interest is to pursue his own right.” See Barak, ibid, at 207.

33. See discussion of Gamillscheg’s theory in Kenneth M. Lewan, “The Significance of Constitutional Rights for Private Law: Theory and Practice in West-Germany” (1968) 17 Int’l. Comp. L.Q. 571 at 578–79.

34. Gamillscheg, supra note 33, indicated his insistence on the element of imbalance of power in his opinion that the application of human rights prior to the creation of employment relations between a job applicant and an employer should be restricted to cases in which the employer has power over job applicants, as for instance where there is a one company town.

35. “Group status” is used here to denote socio-economic status considerations, i.e., readiness to regard the socio-economic group membership of an individual as relevant to his or her needs for protection against abuse of power.

36. It should be noted that the existence of the examples in legal systems is not evidence of general acceptance of a theory of privatisation of human rights in those systems. Thus, for instance, in the German legal system, from which many of the examples are taken, the doctrine is a matter of controversy. Kommers writes: “The Parliamentary Council did not appear to share the Federal Constitutional Court’s view of the relationship between constitutional and private law. According to the most authoritative account of the Council’s proceedings, the Basic Law was meant to apply to public, not private law.” Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 1989) at 568 note 7; see also, Lewan, supra note 33 at 571.

37. Horan, supra note 2 at 853–57. 3$. Ibid, at 853.

39. See for instance the provision prohibiting discrimination in the Indian Constitution or the prohibition of conferment of aristocratic title in the American and Japanese Constitutions: See Horan, supra note 2 at 855–66.

40. Ibid, at 856.

41. Ibid, at 857 at fn. 44.

42. Lewan, supra note 33 at 572 n. 10.

43. See Quint, supra note 7 at 248: “The framers of the Basic Law rejected the authoritarian style of previous political traditions and sought to erect, on a more durable foundation, a political order reflecting the republican and libertarian principles of the Weimar Constitution.”

44. László Trocsanyi, Fundamental Problems of Labour Relations in the Law of the European Socialist (Budapest: Akademiai Kiado, 1986) at 16–25.

45. Horan, supra note 2 at 850.

46. Elena Bunk, Integration of Russian Immigrants into the Israeli Labour Market (Harry Sacher Institute for Comparative Law and Legislative Research, Hebrew University, Jerusalem, 1993).

47. Clapham, supra note 5 at 95–96. See, respectively, the Proceedings of the Nuremberg Tribunal (1 Oct 1946); European Convention on Human Rights, sec 11.

48. Clapham, supra note 5 at 97–98. See, respectively, International Convention on the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Forms of Discrimination against Women (1979) UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religious Belief (1982).

49. Clapham, supra note 5 at 101.

50. Clapham, ibid, at 344.

51. 47 BAG 363 (1984); Quint, supra note 7 at 274.

52. 1 BAG 185; Lewan, supra note 33 at 586; Barak, supra note 8 at 188.

53. 1 BAG 258; Lewan, ibid, at 583; Barak, ibid, at 183.

54. 11 BAG 338; Lewan, ibid, at 584; Barak, ibid, at 183.

55. 30 B Verf GE 173 (1971) (Mephisto): see Quint, supra note 7 at 290 ff; Kommers (1989) 309–12.

56. 7 B Verf GE 198, 223 (1958) (Luth): see Quint, supra note 7, for full discussion of the case; Kommers (1989) 426–430.

57. 25 B Verf GE 256 (1969) (Blinkfuer): see Quint, supra note 7 at 275–77.

58. 4 BAG 274; Lewan, supra note 33 at 588; Barak, supra note 8 at 183.

59. 6 BGH 360; Lewan, ibid, at 589; Barak, supra note 8 at 183.

60. 38 BGHZ 317; Lewan, supra note 33 at 585–86.

61. Lewan, ibid, at 580.

62. 24 BGHZ 72, 76; Lewan, Ibid. at 581; Barak, supra note 8 at 183.

63. 26 BGHZ 349; Barak, ibid, at 183.

64. Air Stewards Committee of El-AL v. Edna Hazin et al. 4 P.D.A 365; Izu Shabaton Koen kk. v. Kuni Hara et al. Int. Lab Law Rep., Vol. 1, 1974, 62.

65. Tachanot v. Yaniv, Nat. Lab. Ct 1996 (not yet published); Barak, supra note 8 at 188 note 132, quoting X. Domenech, Practicas de Derecho Constitucional (1988) 167; Stc. 5/1981 de 13 febrero.

66. Barak, supra note 8 at 177–78.

67. The Kestenbaum Case. The constitutional protection for human dignity is guaranteed under the Basic Law: Human Dignity and Liberty,1991; however, see. 11 of this Law provides that: “All governmental authorities are obliged to respect the rights under this basic law” and the application of its principles to private relations is clearly a judicial act. See David Kretchmer, “The New Basic Laws on human rights: A Mini-Revolution in Israeli Constitutional Law?” (1992) 26 Is. L.R. 238–49.

68. The Kestenbaum Case at 537. Justice Barak qualified this holding somewhat by emphasising, contextually, that the burial society did have quasi-public attributes and that the contract was a standard contract not subject to real negotiation between the parties.

69. Young, James and Webster v. UK Eur Ct Series A, Vol 44.

70. Applic. 14229/88; Report of 8 Oct. 1991.

71. Eur. Ct. Series A, Vol. 32.

72. Eur. Ct (1985) Series A, Vol. 91.

73. There is an illustration of this in the German case law. In the Luth case (supra text at note 56), the German Court protected the right to free speech of the boycott organiser, emphasising that he was a person with a legitimate interest, who was not motivated by economic goals of his own. In the Axel Springer case (supra text at note 57), the Court did not protect the Springer boycott because Springer was “simply applying its economic power against the news dealers rather than making a general contribution to the formation of public opinion.” Quint, supra note 7 at 276, 285.

74. See Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (New Haven, CT: Yale University Press, 1923). In the context of the relations between one individual and another a liberty, unlike a right, does not impose a correlative duty on the other. However, I would suggest that, in the context of the relations between individual and State, this is not so and the State has not only the correlative obligation to refrain from interference in the liberty of a citizen but also the active duty to bestow that liberty on the individual by creating the conditions for its existence and enforcement.

75. See German cases supra text at notes 56, 57. Thus, for instance, employers have been obliged by the courts, in the absence of legislative provision, not to discriminate against women in promotions: Air Stewards Committee of El Al et al. v. Edna Hazin et al. 4 P.D.A 365; and to allow their female employees to work until the same age as male employees: Dr. Nevo v. The Jewish Agency 18 P.D.A 197; Izu Shabaton Koen K.K v. Kuni Hara et al. International Labour Law Reports, Ed. Bar Niv Vol. 1,1974, 62. Nissan Motor Co. v. Tokyo High Court 12 March 1979, Social and Labour Bulletin (I.L.O) 1979,309. Re legislative equality in private relations see infra.

76. Frances Raday, “Socio-Dynamic Equality: the Contribution of the Adversarial Process” in Slonim, ed., The Constitutional Bases of Political and Social Change in the US (New York: Preager, 1990). Hereinafter: Raday (1990) 141–44.

77. Aristotle, Nicomachean Ethics (Indianapolis, IN: Bobbs Merrill, 1962) 118 para. 1131a-b.

78. Raday (1990) at 144.

79. Sex Discrimination Act 1986 c. 59; Employment Protection Act 1976 c. 44; Race Relations Act 1976 c. 74; Housing Act 1988 c. 50; Civil Rights Acts 42 U.S.C 1971 et seq., 1981, 3601 at seq. 2000 e-2000 e17 Norway—Act No. 45 of June 1978 Relating to Equal Status Between Sexes s.21; UN International Convention on the Elimination of All Forms of Racial Discrimination (1965); UN Convention on the Elimination of All Forms of Discrimination Against Women (1979).

80. Loving v. Virginia 388 U.S.I. (1967).

81. Lovingv. Virginia 388 U.S.I (1967); Reed v. Read 404 US 71 (1971); Frontiero v. Richardson 411 US 677 (1973); Korematsu v. U.S 323 U.S 214 (1944).

82. Andrews v. Law Society of British Columbia [1989] S.C.R. 143, 174–75. “[Discrimination may be described as a distinction … which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination. … The enumerated grounds in sec. 15(1) of the Charter … reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of sec 15(1) receive particular attention”. The grounds enumerated in sec. 15(1) of the Charter are race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

83. 438 U.S. 265(1978).

84. Ibid, at 307–09. “The concepts of ‘majority’ and ‘minority necessarily reflect temporary arrangements and political judgments … the white majority itself is composed of various minority groups most of which can lay claim to a history of prior discriminations at the hands of the state and private individuals…. Not all of these groups can receive preferential treatment because then the only ‘majority’ left would be a minority of White Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not….” “Remedying the effects of past societal discrimination” is “too amorphous” a concept of injury to vindicate “a governmental interest in preferring members of the injured groups at the expense of others … the government has no compelling justification for inflicting such harm”.

85. Ibid. at 327.

86. Ronald M. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at 224.

87. Raday (1990).

88. UN International Convention on the Elimination of All Forms of Racial Discrimination, 1966, Art 4; Convention for Elimination of All Forms of Discrimination Against Women, 1979, Art. 4.

89. See, for example, the Norway Act No 45 of June 1978 relating to equal status between sexes; The Canadian Charter of Rights and Freedoms, Canada Act, 1982 sec. 15.

90. See, for instance, Barak, supra note 8 at 197–99.

91. Freedom of Association and Protection of the Right to Organise Convention, 1948; Right to Organise and Collective Bargaining Convention, 1949). The right to strike was derived from the guarantee of freedom to collective bargain by decisions of the ILO Committee for Freedom of Association. It was adopted expressly as an independent right in the European Social Charter 1988 sec. 13.

92. The protection of the right of employees to organise is expressly recognised as a right in private relations as well as being a right against the state.

Article 3(2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948:”Public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof, Article 2 of the Right to Organise and Collective Bargaining Convention, 1949:

“1. Worker’s and employers’ organisation shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment or administration.

2. In particular, acts which are designed to promote the establishment of workers’ organisations under the domination of employers or employers’ organisations, or to support workers’ organisations by financial or other means, with the object of placing such organisations under the control of employers or employers’ organisations, shall be deemed to constitute acts of interference within the meaning of this Article.”

93. For example: ILO Convention No. 151 on Labour Relations in the Public Service, Article 9: see Angela D. Byre, “Human Rights at the Workplace” (London: Policy Studies Inst., 1988) at 24–27; R. Schwarz, “Privacy in German Employment Law” (1992) Hastings Int’l. & Comp. L. Rev. 135; Davis S. Hames, & Nickie Diersen, “The Common Law Right to Privacy: Another Incursion into the Employers’ Right to Manage their Employees?” (1991) 42 Labor L. J. 757.

94. Clyde W. Summers, supra note 26 at 722; Paul C. Weiler, “The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law” (1990) 40 Univ. of Tor. L. J. 117 at 137.

95. For a fuller exposition of this issue see Frances Raday, “The Constitutionalisation of Labour Law” in Blanpain & Weiss, eds., The Changing Face of Labour Law and Industrial Relations, Liber Amicorum for Clyde W. Summers. (Baden Baden: Nomos Vesl. Ges, 1993) 83.

96. The State of Israel, Ministry of the Interior v. The Histadrut Federation of Labour in Israel et ai, Jerusalem Regional Labour Court 25.5.92. The strikers were employees of the Ministry of the Interior but there is nothing in the judgment to indicate that the decision is limited to public servants.

97. Histadrut, General Federation of Labour in Israel v. Zim-lsrael Shipping Co., (1994) 26 PDA 3. In this decision, the National labour Court established both the negative freedom of organisation and its implications for union security arrangements for the first time in Israel.

98. Amit Employees ‘Histadrut of Maccabi v. New Histadrut General Federation of Labour (1996) 29 PDA 61.

99. H. C.J. 7029/95 New Histadrut General Federation of Labour v. Amit Employees ‘Histadrut of Maccabi (51 (2) PD 97). Weiler, supra note 94 at 152, 162.

100. Weiler, ibid.

101. Weiler, ibid, at 167.

102. Weiler, ibid, at 166–67.

103. Lavigne v. Ontario Public Service Employees Union et al. (Supreme Court) (1991) 81 DLR(4th)545.

104. Commenting on Re Arlington Crane Service and Minister of Labour (Ont) (1988) 56 DLR.(4th)209.

105. Weiler, supra note 94 at 135.

106. Weiler, ibid. at 141–42.

107. In Europe, social security provisions were introduced to protect employees, out of recognition that they were more than mere vehicles for the sale of labour. The earliest such measures were introduced by Bismark between 1883–1889; other European states quickly followed suit. International conventions and state regulations subsequently established a series of protective standards for employment conditions: maximum hours of work, minimum age, and health and safety regulations replaced the regime of laissez faire. See generally: Clarence W. Jenks, International Protection of Employees’ Rights (London: 1957). Karl Renner, The Institutions of Private Law and Their Social Functions (London: Routledge & Kegan Paul Ltd., 1949) at 121–22. Mrs. Sidney Webb, ed., The Case for the Factory Acts (London: Grant Richards, 1901) at 8–9.

108. It should be added that, in the real world of labour relations outside the courtroom, the uncertainty which must result from this case by case balancing benefits the party who can afford to undertake litigation in order to vindicate his or her claim. This is inevitably the employer or the union and seldom if ever the individual employee. Hence as a group, employees will be disadvantaged by the shift of policy even if, in the individual cases which are actually reviewed by the courts justice appears, on the specific facts, to have been done. See Earl Johnson Jr., “Thinking about Access: A Preliminary Typology of Possible Strategies”, in Mauro Cappelletti, ed., HI Access to Justice (Milan: Sijthoff and Nordhoff, 1979) 18. Calabresi suggests that one of the solutions which should be considering for dealing with the inequalities in the access to justice between the poor and the rich is the use of “self-executing rules, and even of relatively simplistic, broad-brush, wholesale justice rules”. Guido Calabresi, “Access to Justice and Substantive Law Reform: Legal Aid for the Lower Middle Class” ibid, at 190.

109. Being, as it is, only an empirical fact, this does not of course dispose of the normative policy issue. The advisability of the move to privatise human rights remains open to debate even where it has already occurred, as do the scope of the doctrine and the choice between the contending versions of justice that this entails.

110. There are, of course, other possible combinations of formal and substantive justice and of individual and collective rights but, in the present context, the dichotomy which is of interest to us is between the two mentioned combinations.

111. Quint, analysing the privatisation of constitutional rights in Germany, concludes “To the extent that an extension [of the Constitution into the private realm]… will result in requiring a balancing of constitutional interests of two individuals on both sides of the dispute, the Constitution may be more likely to require a specific result in each case, because under such a technique, where the constitutional rights of one individual end, the countervailing constitutional rights of the other individual may well begin.” Quint, supra note 7 at 345.

112. Johnson, supra note 108.

113. I argue this more fully in a different context: Frances Raday, “The Costs of Dismissal—An Analysis in Community Justice and Efficiency” (1989) 9 Int’l Rev. Law & Economics 181.

114. Pierre Bordieu, “The Force of Law: Towards a Sociology of the Juridical Field” (1987) 38 Hastings L.J. 814.

115. Roger Cotterrell, The Sociology of Law: An Introduction (London: Butterworth, 2d ed., 1992) 76.

116. Gunther Teubner, Juridification of Social Spheres—Concepts, Limits, Solutions (Berlin: W. De Gruyter, 1987) 14.

117. The way in which this operates is through political lobbies which influence the legislative agenda, shifting power from economic market forces to numerically significant organised groups, such as labour, women and minorities.

118. Macdonald, supra note 14 at 343: Macdonald describes this characteristic of conceptual legal analysis in similar terms: “Moreover, while legalism and legalistic Charters of Rights claim to be politically neutral, entrenching the Charter also entrenches substantive values. Because legalism demands the subsumption of claims of right under impersonal preexisting rules (including the conceptual structure within which such rules operate), it also serves to maintain existing economic distributions.”

119. See Patrick S. Atiyah, The Rise and Fall of the Freedom of Contract (Oxford: Clarendon Press, 1979).

120. In his article, Barak includes public policy and the duty of good faith amongst those doctrines which limit freedom of contract: Barak, supra note 8 at 194–95. This claim does not, however, detract from the distinction drawn above. Public policy was indeed developed by the courts as an instrument for their intervention to disqualify a contractual undertaking but it is instructive to remember that the earliest and most extensive use of the doctrine in the common law was to prevent restraint of trade and this use was aimed to increase contractual and market freedoms and not to limit them. As for the duty of good faith, it is not clear whether this doctrine is intended to serve any purpose beyond the supervision of the contractual behaviour of the parties (and is hence only equivalent to a form of contractual interpretation) or whether it incorporates social values such as the value of equality: Barak ibid, at 201–04. The place of the duty of good faith in the differentiation between the role of the legislature and of the courts will depend not only on whether the courts develop an identifiable social policy under it but also on the goals that policy serves. There are some indications that the policy will be individualistic and not based on socio-economic group justice. Thus in the United States, use of the doctrine in bad faith dismissal cases, has been restricted to individualised grounds of unfairness and not used to create a general job security concept: see Frances Raday, “Individual and Collective Dismissal: A Job Security Dichotomy” (1989) 10(2) Comp. Labor L. J. 121.

121. Teubner, supra note 116 at 11.

122. Teubner, ibid.: “In the first thrust of legal constitutionalization the system of civil law was so coordinated with the exercise of power that the principle of legality of administration could be interpreted in terms of the “rule of law”. In a further thrust the democratization of the constitutionalized power of the state was introduced by law. Universal and equal franchise and freedom of organization for political associations and parties legalized the political process. The last thrust of juridification, that which occurred in the social state, is of crucial importance to our subject. There, the juridification of the modern world of industry and labor, the line of freedom-guaranteeing juridification was continued”.

123. Barak sees the role of the courts in applying human rights to private relations as being unavoidable since the court is a public body and hence itself bound to uphold constitutional principles: Barak, supra note 8 at 117.

124. Quint supra note 7 at 345.

125. The discussion of the interaction between the legislature and the courts in the context of a constitutional democracy of this kind rests on the assumption that the courts have the power to review and invalidate legislation which infringes human rights.

126. Slattery, supra note 11 at 910, 916–23.

127. Canada’s Constitution Act, 1982 (The Charter) has a balancing standard in sec. 1. Accordingly, the Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Similar balancing clauses are to be found in the European Declaration of Human Rights and in the Bills of Rights of many Commonwealth countries: see G. Marshall, “Canada’s New Constitution (1982)” in Vernon Bagdanor, ed., Constitutions in Democratic Politics (Aldershot: Gower Policy Studies Inst., 1988) 163–65. Israel’s Basic Law: Human Dignity and Liberty provides that the courts have the power to invalidate legislation only if it is not consistent with the values of the State of Israel, as a Jewish and democratic state, and is not for a proper purpose: sec. 8: “The rights according to this Basic Law shall not be infringed except by a statute that befits the values of the State of Israel and is directed towards a worthy purpose, and then only to an extent that does not exceed what is necessary”.

128. In his analysis of the judicial application of the Canadian Charter to private relations in the workplace, Weiler justifies judicial reticence in applying Charter principles on pragmatic pluralist grounds: supra note 94.

129. An apparently different challenge to the privatisation of human rights is that it derogates from the autonomy of individuals in society. This challenge appears to rest on liberal rather than democratic principles. However, for the purpose of drawing the boundaries for judicial guardianship of human rights, this challenge also stands or falls in accordance with the same criteria as those which determine democratic legitimacy. Since there is a trend of democratic legislatures to limit autonomy in order to protect the human rights of members of disadvantaged groups, there seems to be no ground for objecting to judicial policy which does similarly. However, beyond the limits of this policy, if the courts extend privatisation of human rights to relations between individuals outside the context of unequal socio-economic power relations, this could be argued to be an illegitimate interference in private autonomy, even where it does not undermine welfare policy. The success of this argument depends on whether the silence of the legislature should be interpreted as a lacuna or as a negative arrangement.