There is an increasing effect of fundamental rights outside of the citizen-state relationship, invading domains such as labour law, contract law, family law, and property law. These rights and principles have often served as much more than mere interpretive aids and have become actual substantive rules of law, independent of whether their invocation resulted in a successful or unsuccessful claim. This debate, commonly referred to as the horizontal effect of fundamental rights, has also undoubtedly affected the law of torts. The development of the debate surrounding the horizontal effect of fundamental rights and the readiness of several courts to permit basic rights to influence the outcome of a case, have led to an increasingly decisive role for constitutional texts in the field of torts. The effect of fundamental rights in the field of the law of torts is undoubtedly more often felt in regard to the position of the tort victim, and the entitlement of the victim to damages, rather than in regard to the position of the tortfeasor strictu sensu. By this it is implied that, despite judges sometimes balancing the fundamental rights of both tort victims and tortfeasors, the influence of fundamental rights in the law of torts impacts, most often, directly the position of tort victims, either by strengthening or weakening their position, always concentrating more intensively on their interests. The position of tortfeasors is commonly only affected indirectly, as a consequence of the consideration of the fundamental rights of tort victims. This can be easily illustrated by references to the English, German and Italian jurisdictions, among others.By drawing from scholarly writings and case-law from several European and non-European jurisdictions, this book chapter contributes to a change from the focus on the position of the tort victim to that of the tortfeasor. In order for the law of torts to fulfil and satisfy all its different functions and interests, while simultaneously respecting and promoting commonly accepted legal values, the position of the tortfeasor should be analysed in se, not as a mere reflection of the position of the tort victim. No other instrument could perform this task better than fundamental rights, dynamic tools that they are. In addition, the thorough fulfilment of all fundamental rights equally requires such change in the legal mindset, as the law of torts has to give respect to the fundamental rights of both the tort victim and the tortfeasor in a balanced and just way. A refocus of the debate surrounding the horizontal effect of fundamental rights on the law of torts is therefore proposed, thus also assessing the impact that fundamental rights and principles may have directly on the position of the tortfeasor strictu sensu.
Fundamental rights, constitutional principles, and the law of torts: tortfeasors v. tort victims. In: Liability in the third millennium : liber amicorum Gert Brüggemeier. Nomos, pp. 49-84
