HORIZONTALAPPLICATIONOFFUNDAMENTALRIGHTSRETHINKINGTHE

1、horizontal application of fundamental rights rethinking the structures of constitutional democracyjohan van der walt* professor of law, university of glasgow.“entscheidend ging es jedoch sowohl der déclaration als auch der deutschen grundrechtsdoktrin darum, daß es der staat, vor allem der

2、 gesetzgeber, war, der die freiheitssphäre auch im privaten recht zu sichern hatte.” klaus stern staatsrecht iii/1, 1516.i introductionvolume iii/1 of klaus sterns staatsrecht der bundesrepublik deutschland introduced me to german drittwirkung or horizontal application jurisprudence. it is in t

3、his volume of sterns monumental work on german public law that i read in 1999, as a humboldt scholar under klaus sterns hospitable betreuung, that the horizontal application of fundamental rights or drittwirkung der grundrechte always confronts the judiciary with the problem of two competing or conf

4、licting fundamental rights. when one party in a private legal conflict deems it fit to articulate a legal claim in terms of a fundamental right, the other party will invariably be able to do the same. stern puts the matter as follows:“die besonderheit dieser konstellation liegt darin, daß hier

5、die privatrechtssubjekte prinzipiell beide grundrechtsberechtigte sind; entfalten in diesem verhältnis die grundrechte wirkungen derart, daß hierdurch der eine gegenüber dem anderen beteiligten geschützt wird, so kann dies zugleich eine beeinträchtigung der grundrechtlichen

6、freiheit des anderen beteiligten privatrechtssubjekts bedeuten. die grundrechte würden daher in diesen verhältnissen für alle beteiligten gleichzeitigt zu rechten und zu pflichten führen.” klaus stern, staatsrecht iii/1 (münchen, c h beck, 1988) 1513.“the specificity of this

7、 constellation lies in the fact that the private law subjects involved in the dispute are in principle both bearers of fundamental rights; when the fundamental rights relationship between the parties is such that the one partys fundamental rights are protected against the other, the other can also c

8、laim that such protection would, in turn, abridge his fundamental rights. the fundamental rights would therefore in this case imply rights and duties for all parties involved.”the conflict of fundamental rights that stern describes here portrays a structural complexity at the heart of horizontal app

9、lication jurisprudence. one of the dexterous ways by which legal theory has all along sought to sidestep this complexity was to deny that horizontal application involves a clash of fundamental rights in the way stern describes it in this passage. in german literature it was especially jürgen sc

10、hwabe who insisted persuasively on the “so-called” or “sogenannte” status of horizontal application. horizontal application, according to schwabe, was a non-issue or pseudo-problem; in the final analysis it is always the state and not the private individual that is the real object of constitutional

11、review. jürgen schwabe, die sogennante drittwirkung der grundrechte. zur einwirkung der grundrechte auf den privatrechtsverkehr (münchen, wilhelm goldmann, 1971) 9-25. schwabes view can be said to have triumphed in the jurisprudence of the german federal constitutional court (bundesverfass

12、ungsgericht, hereafter referred to as the gfcc) when the gfcc commenced to emphasise the duty of the state to protect and guarantee the fundamental rights of citizens as the heart of its “horizontal application” jurisprudence. 39 bverfge 1; 46 bverfge 116; 49 bverfge 89; 77 bverfge 381; 88 bverfge 2

13、05; 96 bverfge 56.and strictly speaking, the view that it is always the state and never the individual that figures as the object of constitutional review, was all along quite evidently already embodied in the epochal lüth case which precipitated the gfccs horizontal application jurisprudence i

14、n 1957. already in lüth does one encounter the crucial formula that the gfcc would use almost invariably in its later judgments. it is not the individual that abridged the right of the constitutional plaintiff (verfassungsbeschwerde), but the trial court that failed to interpret and assess his

15、fundamental rights correctly. this is the way the gfcc phrased the matter in lüth:“das bundesverfassungsgericht ist auf grund dieser erwägungen zu der Überzeugung gelangt, daß das landgericht bei seiner beurteilung des verhaltens des beschwerdeführers die besondere bedeutung

16、 verkannt hat, die dem grundrecht auf freie meinungsäußerung auch dort zukommt, wo es mit privaten interessen anderer in konflikt tritt. das urteil des landgerichts beruht auf diesem verfehlen grundrechtlicher maßstäbe und verletzt so das grundrecht des beschwerdeführers aus

17、 art 5 abs 1 satz 1 gg.” 7 bverfge 198, 230 emphasis added. the court relied on this wording again and again in subsequent judgments. see 24 bverfge 278; 25 bverfge 256; 30 bverfge 173; 34 bverfge 35 bverfge 202; 42 bverfge 142; 46 bverfge 325; 54 bverfge 129; 54 bverfge 148; 60 bverfge 234; 61 bver

18、fge 1; 62 bverfge 230; 66 bverfge 116; 73 bverfge 261.“the decision of the regional court failed to recognise the significance which the right to freedom of expression enjoys also in those cases where it comes into conflict with private interests. as such it fell short of constitutional criteria and

19、 must be deemed to have violated the fundamental right which the plaintiff enjoys in terms of article 5 i.”considering the schutzpflicht jurisprudence of the gfcc and this formula that it coined in lüth, schwabe would appear to be correct. ultimately it is always the state, some state action or

20、 ommission, that constitutes the object of constitutional review, also when the conflict that necessitated the review has its origins in private legal relationships. this concession to schwabe does nevertheless not mean that sterns asessment of drittwirkung in terms of a conflict between fundamental

21、 rights is incorrect. one of the points that i will be stressing in this essay is that stern is in fact correct, but at a much more fundamental and somewhat different way than is apparent at first glance. the special nature (besonderheit) of drittwirkung, i shall argue, consists in the way it remind

22、s us that all constitutional review concerns a conflict between two fundamental rights. and this reminder, i shall argue further, is a crucial point of entry for a much needed rethinking of the fundamental structure of constitutional democracy in the era of increasing supra-statal governance evident

23、 in contemporary europe and elsewhere in the globalised world. and sterns view regarding a conflict of fundamental rights, we shall see, goes to the heart of the structure that is at issue here. my argument will proceed in four steps. section ii will briefly expound an analysis of american state act

24、ion jurisprudence. the point of this exposition will be to point out the close correspondence between schwabes state oriented approach to drittwrikung and the state action jurisprudence of both the united states supreme court and prominent american legal theorists. section iii will contrast the stat

25、e oriented understanding of constitutional review evident in the state action doctrine with the significantly different understanding of “constitutional review” prevalent in france, in terms of which the state is the subject and not the object of constitutional review. this contrasting comparison be

26、tween american and french constitutional theory and practice will serve as a hermeneutic background for an engagement with a crucial point that walter leisner made in his epochal contribution to the german drittwirkung debate. leisner, grundrechte und privatrecht (münchen, c.h. beck, 1960). as

27、will become clear towards the end of section iii, leisner espoused a typically french understanding of “constitutional review” in terms of which the state is not the primary suspect of constitutional transgressions, but quite to the contrary, the primary guarantor of the constitution and constitutio

28、nal rights. leisner forwarded this view to make a crucial point in his theoretical analysis of the drittwirkung problematic: constitutional review is primarily concerned with the review of private power, and not just anomalously, secondarily or indirectly so, as drittwirkung jurisprudence has pervas

29、ively come to maintain in the wake of jellineks emphasis of the staatsrichtung of constitutional review. leisner, we shall see, quite evidently viewed private power, not public power, as the primary threat to constitutional rights. the view of the state as the primary guarantor of constitutional rig

30、hts instead of the primary suspect of constitutional violations can be argued to have gained new significance in the wake of the gfccs lisbon judgment in 2009. that private power and the subversion of public power by supra-statal governance have come to constitute more significant threats to constit

31、utional rights than state conduct in the era of globalisation, has been observed by many european legal theorists in the wake of the viking, laval, luxembourg and rüffert judgements of the european court of justice (ecj) in recent years. section iv engages with the positions taken by the gfcc a

32、nd ecj in these cases against the background of the arguments developed in sections i to iii.section v concludes this essay with a number of reflections on how one might reconceive constitutional democracy in view of insights gained from sections i to iv. what this essay as a whole hopes to convey w

33、ith the thoughts developed in sections i to v can provisionally be summarised as follows: the drittwirkung question invites legal theory to return to and rethink the original raison dêtre of the constitutional state in a time that has largely come to forget and suppress this raison dêtre.

34、the result of this suppression and forgetfulness is unsurprising. we live in a time of rampant private freedoms, glaring inequalities, and indistinct private/public modes of governance that threaten to displace public spheres and democratic accountability in just about all walks of life. the banking

35、 industry has in recent months and years come to demand entitlement to unimaginable sums of public money simply because they are “to big too fall”. this is a startling example, but just one of many that reveal the extent to which the power of contemporary constitutional democracies have come to be d

36、isplaced by conglomerates of power that increasingly render the public-private distinction meaningless. this development may well be signalling the emergence of forms of power akin to pre-modern feudal powers that united the capacities of dominium and imperium. this is a point that legal theorists m

37、ust ponder incisively today. a radical reflection on drittwirkung, the state action doctrine or the horizontal application of constitutional rights provides legal theory with a crucial opportunity to do so.ii the american state action doctrinethe american state action doctrine has its origin in a di

38、ctum of justice bradley in the majority opinion of the court in the civil rights cases. this is how justice bradley put the matter:“in this connection, it is proper to state that civil rights, such as are guaranteed by the constitution against state aggression, cannot be impaired by the wrongful act

39、s of individuals, unsupported by the state authority in the shape of laws, customs, or judicial or executive proceedings. the wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it

40、 is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under the state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. hence, in all those case

41、s where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces and for which it clothes the congress with power to provide a remed

42、y. this abrogation and denial of rights for which the states alone were or could be responsible was the great seminal and fundamental wrong which was intended to be remedied. and the remedy to be provided must necessarily be predicated upon that wrong. it must assume that, in the cases provided for,

43、 the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.” 109 u.s. 3 (1883) at 17.the reasoning embodied in this dictum enabled the united states supreme court to develop an extensive jurisprudence according to which it was constitutionally

44、unobjectionable for private individuals to discriminate against others on the basis of race; hence charles blacks famous description of the state action doctrine as “the last unexpunged clause of americas long settled gentlemans agreement about racism”. charles black jr. “state action, equal protect

45、ion, and californias proposition 14” (1967) 81 harvard law review 79, 109. this gentlemans agreement, however, no longer seemed so gentlemanly when the supreme court had to decide the epochal case of shelley v kraemer in 1948, and the court did its best to break out of it. the disputes in shelley tu

46、rned on the question whether the judicial enforcement of restrictive covenants between private individuals constituted missouri state action that was subject to review in terms of the 14th amendment of the united states constitution. the court decided that it did, thereby exploding the state action

47、doctrine. if judicial enforcement constitutes state action, the existence or non-existence of state action can no longer be an interesting or significant question for the judiciary to consider, for this very consideration would as such already constitute state action. had shelley remained good law i

48、n all respects, it surely would have terminated the state action doctrine, but the supreme court subsequently restricted shelleys applicability severely enough to keep or restore americas “gentlemans agreement”, irrespective of how unsavoury this agreement had become for many. the explosion of the s

49、tate action doctrine in shelley could have been a watershed moment in american law, but it turned out to be nothing but a momentary hiccup, as will soon become clear. shelley was not the only case that can be said to have exploded, albeit again only momentarily, the state action doctrine. two other

50、supreme court cases are also noteworthy in this respect, the most prominent of which is the 1963 case of new york times v sullivan. 376 us 254 (1963). in sullivan, justice brennan accepted without much ado that defamation law embodied in the common law of the state of alabama constitutes state actio

51、n for purposes of the 14th amendment. and justice frankfurter already decided in the 1941 case of labour v swing that common law rules regarding unlawful picketing constituted state action under the 14th amendment. 312 us 321 (1941). sullivan and swing are very similar as far as their acceptance of

52、common law as a form of state action is concerned, but sullivan would come to strike american legal theory as the pivotal case. state action should have been duly considered to be “out of business” after new york times v sullivan, frank michelman observes. if the constitution tolerates neither execu

53、tive state administration, nor state legislation, nor state common law that falls foul of its guarantees, there is simply no basis left on which any judicial decision can escape state action review in terms of the 14th amendment. yet, anyone who knows something about american law, also knows, conten

54、ds michelman further, “something persists in american jurisprudence that walks and talks like a state action doctrine with teeth.” michelman “the bill of rights, the common law, and the freedom-friendly state” (2003) 58 university of miami law review 401, at 404. how did this persistence of the stat

55、e action doctrine come about? the answer is simple. the american judiciary simply chose to ignore the irrefutable logic of shelley, swing and sullivan. this logic was eminently clear to former chief justice rehnquist in flagg brothers, inc. v brooks, 436 u.s. 149 (1978), hereafter cited as flagg bro

56、thers.but “he insisted that american constitutional legal doctrine must pretend not to notice it, as michelman explains elsewhere. michelman “w(h)ither the constitution?” 2000 (21) cardozo lr, 1063, 1076. rehnquist simply stated dead pan that “it would intolerably broaden . . . the notion of state a

57、ction under the fourteenth amendment to hold that the mere existence of a body of property law in a state, whether decisional or statutory, itself amounted to state action. . . .” flagg brothers at 160 n.10. canaris can be said to have rallied to a “rehnquist call” in germany, claus-wilhelm canaris

58、“grundrechte und privatrecht” (1984) 184 archiv für die zivilistische praxis 201, 219: “es bleibt allenfalls noch das argument, im zwangvolstrekkungsverfahren greife der staat selbst ein. auch das überzeugt jedoch nicht. denn die vollstrekkung eines auf verfassungsgemäßen normen

59、beruhenden zivilurteils stellt als solche keine eigenständige grundrechtseinschränkung dar.” the reworked essay of 1999, grundrechte und privatrecht: eine zwischenbilanz (berlin/ new york: walter de gruyter) does not make this point as expressly. but a significant contingent of american le

60、gal theorists have all along refused to entertain the kind of pretence for which justice rehnquist (as he was at the time) called in 1978 and they continued to do so thereafter. they all basically endorsed the schwabian point that no lawful individual action can be claimed not to involve some or othe