David Bilchitz’s ‘Fundamental Rights and the Legal Obligations of Business’

ABSTRACT It is now widely acknowledged that corporations significantly impact the fundamental rights of individuals; and so they should carry (negative, and possibly also positive) obligations with respect to those fundamental rights. Yet the literature has largely neglected the critical follow-up question: how do we determine the content of those obligations in particular situations? Bilchitz takes up that challenge in his magisterial new work, Fundamental Rights and the Legal Obligations of Business, which is the subject of this review essay. His key contribution is providing a structured process of reasoning to guide decision-makers in concrete contexts. This reasoning process involves the identification of various normative factors to guide the determination of corporate obligations which then must be balanced according to two structured tests for positive and negative obligations respectively. This paper summarises Bilchitz’s core arguments in some detail, attempts to distil the ‘heart’ of his strategic project, and then concludes by raising several critical points for discussion.