Just a few years after it was established in 1951, the Federal Constitutional Court decided that the principles of Germany’s new Basic Law needed to be considered in adjudicating public and private action alike. In many ways, the Court’s judgment in the landmark Lüth case simply mirrored the constitutional drafters’ urgency to protect the constitutional order against the future rise of authoritarianism and rights abuses. Such a project arguably required some ability to reach a wider expanse of society in the way horizontal application (Drittwirkung) permitted. Following Lüth’s paradigmatic account of the need for a kind of parity across spheres, much of the content of subsequent court decisions and the language of other constitutional actors may be read as tracking a republican mode of discourse. The protection of individual rights remained essential in a postwar world. However, rights were often discussed in terms of broader ends, ends which a range of actors within the community were called upon to uphold.

This reorientation to secure an “objective order of values,” to use the words of the Court deciding Lüth, might be viewed as compatible with other aspects of German political tradition as well. The statist and welfarist orientation of German public law, for example, may also be described as establishing the larger political community’s role in securing certain positive ends. In addition, while social welfare is often pursued through means different from horizontal application, a state already charged with such positive objectives might easily regulate private behavior in parallel fashion to horizontality. Winfried Brugger offers a communitarian account of German constitutionalism that makes clear how there is space for such objectives. Ultimately, he describes the German constitutional order in terms of “liberal communitarianism,”Footnote ¹ attempting to balance individual rights and collective goals. In Brugger’s telling, the communitarianism of German constitutionalism does not require foregoing individual rights, as some might conclude from the term “communitarianism,” but does comprehend certain collective goals of the community to which individual rights may give way, despite the typical priorities of liberal constitutionalism.

This dual liberal-communitarian portrait that Brugger paints portends a place for both horizontal application and certain countervailing factors in German constitutional debates. Horizontal application was adopted early on, but only after serious debates and institutional tensions. Indeed, although German governance is often understood to have statist proclivities, other aspects of German politics have roots in liberalism and, at least in the nineteenth century, a kind of libertarian liberalism at that.Footnote ² Taking a cue from Louis Hartz,Footnote ³ legal scholar Peter Quint explains that the German Basic Law reflects a similar concern with classical liberal rights to what we find in American constitutional-political history.Footnote ⁴ An insistence on maintaining the integrity of private law as separate pervades the civil law tradition and, in certain ways, the Basic Law’s own codification of autonomy and other classical liberal rights.Footnote ⁵ However, while regard for a robust private sphere maintains some hold in German legal history, the new constitutional order enshrined a set of values that such actors as the Constitutional Court would understand as governing increasingly more sectors of German society.

In the terms of this book, the practice of horizontal application, rooted in the language of an objective order of values, tended to a republican interpretation, presupposing a common constitutional morality for which even private actors were understood to be on the hook. While quickly incorporated into legal practice, however, horizontality was also limited in the German Constitutional Court’s jurisprudence in that it was not generally applied in such areas as antidiscrimination and equality. In arguments for autonomy, republican interpretations encountered obstacles around these issues into the twenty-first century. In contrast with discourses about a larger constitutional moral order articulating certain ends and the possibility of duties for private actors, cases concerning antidiscrimination and equality engendered discourses much more centered on individual rights, and particularly rights that might run up against broad commitments to equality. Thus, in developing horizontal application, constitutional actors would allocate duties in such a way that insulated private actors from duties related to equality. Instead, the Court primarily applied classical political and civil rights horizontally, couched in language that conceptualized them as common ends, requiring parity across spheres and triggering duties of citizens.

In this way, the discourses employed on the topic of horizontality have gradually made constitutional commitments over into a kind of common good, obliging more actors and spaces in what has traditionally been understood as the private sphere. Jacobsohn and Roznai explain how the adoption of the Basic Law “signals the moment when the foundation for achieving a new identity in that country was established.”Footnote ⁶ Horizontal application has served as an instrument to ensure this new identity is realized in toto.Footnote ⁷ The reorientation toward an objective order of values and, by extension, certain common ends precipitated by the Basic Law thus offers ground for a republican interpretation of horizontal application in this context.

This chapter begins by describing the pedigree and commitments underlying Germany’s civil law tradition and how interpretations of this tradition interact with interpretations of new commitments assumed under the Basic Law. The chapter proceeds with a discussion of horizontal application, centering on its treatment in German legal scholarship and practice. In particular, theoretical and institutional understandings related to Germany’s civil law tradition sometimes run up against newer constitutional aspirations, in general and when applied horizontally. For several decades, discourses pointing toward the pursuit of parity and recognition of private actors’ duties in horizontal application only extended to more traditional constitutional commitments, as described above. This came to a head and began to shift in 2005 and 2006, when the German Parliament attempted to pass antidiscrimination legislation to fulfill directives from the EU. The controversy surrounding this antidiscrimination legislation, particularly from certain corners of industry and religious groups, evinced an enduring liberal ethos in the discourse, still occasionally in tension with the incremental efforts toward greater societal cohesion that underlie the practice of horizontality. More recently, in the Stadium Ban case,Footnote ⁸ among other cases, the Constitutional Court took up the question of the horizontal application of equality and began to speak about this constitutional value in language that may be interpreted in republican terms.

The Public–Private Divide in Germany’s Legal Tradition

Certain corners of German law long maintained presuppositions of individualism and autonomy, both in the structure of the legal system and in the content of the law itself. As was the case in many European countries in the nineteenth century, the German system comprised two distinct categories of law and, corresponding to those categories, independent systems of courts.Footnote ⁹ The Civil Code constituted the private law, “the body of rules that seeks to do justice between private individuals and which does not ordinarily concern the state as a party,”Footnote ¹⁰ while the public law pertains to “obligations or regulations of the political organs of the state.”Footnote ¹¹ These systems of law originally operated independently of one another and, in general, did not intersect.

German jurists located the Civil Code in the ancient tradition of Roman law, thus endowing private law and its practitioners with great prestige. On the other hand, the public law was relatively new and primarily concerned with the administration of social insurance and welfare programs following Bismarck’s 1890 reforms.Footnote ¹² Public law thus lacked the same storied history and reputation for rigor that came to be associated with the Civil Code. Nevertheless, jurists understood the distinction as indispensable. Indeed, by separating the rules governing the state from those governing private relations, the law both delineated a separate sphere of private life and outlined ostensibly neutral rules of engagement for private interchange.Footnote ¹³ Quint explains:

Thus, the Civil Code reflected what Philip Pettit calls freedom as noninterference.Footnote ¹⁵ Though both public and private law were necessary to governance, it was the Civil Code, the private law, that jurists credited with preserving freedom for Germany. In contrast, even when the Weimar Constitution later adopted a long list of rights, these rights were deemed judicially unenforceableFootnote ¹⁶ and still failed to occupy the same position as did the Civil Code in the German imagination.

Apart from the systemic structure that allowed for the referee of private relationships separately from the constraints of public law, the substantive content of law and belief in the Civil Code’s neutrality shows liberal predilections of a certain kind in the contemporaneous legal world. In particular, the rules of private law “were thought to enhance a more general freedom of individuals not to be interfered with by the state – particularly in commercial relationships but also in other areas of everyday life.”Footnote ¹⁷ Thus the Civil Code promised order and protection in such areas of private interchange as contracts, torts, inheritance, and family relationships. Indeed, some continue to point to the Civil Code as an essential source of freedom for the German people, even after the adoption of the Basic Law.Footnote ¹⁸ Moreover, such guarantees as those of private autonomy (Privatautonomie) were “highly cherished” for their role in securing a new middle class seeking economic freedom in the nineteenth century.Footnote ¹⁹ Thus, notwithstanding a few exceptions,Footnote ²⁰ the bourgeois idea “that contracting parties are formally free and equal”Footnote ²¹ and that private transactions ought not to be hindered defined much of the substance of German law until the early twentieth century, when certain elements of such precepts were called into question.

From Neutral Rights to Constitutional Ends

The perception of neutrality of the Civil Code was disputed in the early twentieth century as scholars and political actors observed that political choices undergirded decisions pertaining to both the code’s legislation and interpretation. Severe economic crisis also generated a new urgency to modify the private law to meet the escalating needs of the country.Footnote ²² Later, in the wake of the Second World War, the realization that the Weimar Constitution could be so easily leveraged to serve odious political ends further exposed the problems of striving for value neutrality in the law.Footnote ²³ As political and constitutional reformers moved to amend Germany’s Civil Code and adopt a new Basic Law, the country’s constitutive principles underwent a kind of transformation. To be sure, the Weimar Constitution was a significant influence on the new constitution, and the Civil Code was initially imported into the new regime unamended. Nevertheless, new commitments and historical memory imbued the law with new meanings. Most notably, dignity figured prominently in the new constitution. The very first provision of the Basic Law states, “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”Footnote ²⁴ Such an emphasis on dignity is consistent with liberalism’s concern for the individual and even expands on Kantian strands some scholars identify in earlier instantiations of German law.Footnote ²⁵ In his book Human Dignity, Aharon Barak states that there is “no other constitution in which human dignity has such a central role.”Footnote ²⁶ Indeed, that dignity is enshrined as Germany’s supreme constitutional value, never to be amended, reflects its uncompromising rejection of the abuses of human dignity inflicted by the Third Reich.

While this new commitment to dignity certainly comports with the more liberal threads of Germany’s legal tradition, it depends less on a conception of separate public and private spheres, even as it continues to operate in a civil law system. Indeed, with this and other additions to the Basic Law, the content and very purpose of fundamental law expands.Footnote ²⁷ Barak explains that most approaches to understanding the role of dignity in German constitutionalism employ the context of “the framework of society. Human dignity is not the human dignity of a person on a desert island.”Footnote ²⁸ In this way, we see a shift from the individualism and aspiration to value neutrality of the nineteenth century to something of a moral proposition for how the individual ought to be treated in German society and, by extension, what society itself ought to look like. Returning to the provision of the Basic Law, the second clause reads: “To respect and protect [dignity] shall be the duty of all state authority.”Footnote ²⁹ Barak explains that this provision has the potential to make both negative and positive demands of government.Footnote ³⁰ The duty to respect requires that the state not do anything to offend human dignity, a principle that seems to grow fairly naturally out of the liberal threads of the German legal tradition. The duty to protect, on the other hand, seems to require that the state take some positive action in pursuance of human dignity, though the text itself does not specify what this ought to entail. Almost a decade after the adoption of the Basic Law, the Federal Constitutional Court offered additional meaning and clarity on this duty to protect, interpreting it to require the defense of human dignity against violations by private actors.Footnote ³¹

In this way, human dignity emerges as both a value, or an end, of the German constitution and a right. As a value, it constitutes the basis of the German polity and, to this extent, engenders a kind of “common good.” The important distinction between subjective and objective rights, explained in Chapter 2, further illuminates this development. To reiterate, subjective rights align with the typical conception of rights as justiciable and as giving rise to claims against particular parties, usually the state. In contrast, objective rights comprise the broader values or ends of a given constitutional order.Footnote ³² Objective rights are not immediately justiciable, though sometimes judges may decide cases in ways that derive duties from them. Discussing this shift to extract some understanding of values, of a common good, out of what formerly would have been mere rights claims, Habermas discusses the now-recurring commitment to human dignity in national constitutions today. He states:

If a constitution proposes an encompassing principle to guide a polity, a “seismograph” as Habermas puts it, then it is no longer a stretch to argue that citizens, too, will have some duties in conformity with this standard. Put differently, human dignity begins to clear the normative jungle formerly occupied by the nineteenth-century commitments to neutrality and individualism, thereby preparing German constitutional ground for the kind of parity across spheres and duties of private actors that horizontal application would ultimately actuate.Footnote ³⁴

This concept of objective rights thus serves as an intellectual bridge in constitutionalism, expanding the meaning of rights to encompass a kind of public morality. In the terms of this book, this move to conceive of dignity as the moral basis for the constitutional order gestures toward a new paradigm of parity, governing and creating duties for actors across spheres according to a common standard. While the Basic Law does not explicitly take this step, dominant accounts of its vision as well as its specific content have laid groundwork for such an interpretation. We get one such glimpse into the expanse of the German constitutional project from Jorg Fedtke’s explanation of the years during the Third Reich, of the “climate of fear, terror and oppression, which went far beyond the many single instances of human rights infringements by the regime.”Footnote ³⁵ He states:

As the pathologies and abuses had transcended spheres of life, the reconstituted German law had to be adequately equipped to effect change across spheres as well. Specific provisions in the original text of the Basic Law suggest as much. In addition to the commitment to human dignity, Article 1 Section 3’s statement that rights bind the judiciary “as directly applicable law” begins to challenge the understanding of the role of courts in the civil law tradition, that the judiciary’s role was simply to administer the Civil Code amid private transactions.Footnote ³⁷ Indeed, the idea that rights bind the judiciary could be interpreted as a charge that judges continued to remain accountable to constitutional rights and values in the very process of applying the Civil Code.

On such questions, Article 9 Section 3 guarantees the “right to form associations to safeguard and improve working and economic conditions” against all actors, regardless of occupation or profession.Footnote ³⁸ Thus, the constitutional drafters left little guesswork about the extent of this provision’s application. Though this and the aforementioned provisions in the Basic Law in some sense signaled a certain capaciousness of the constitutional project, their presence also seemed to cut in the opposite direction. Specifically, the act of stating when private actors were implicated by the commitments of the Basic Law was construed as implying that the remainder of the text obligated only state actors. And indeed, it was not long after the Basic Law was adopted that jurists and legal scholars began wrestling with these questions.

Debating Horizontality in the New Constitutional Order

Although the apex courts of the German legal system had already been charged with ensuring consistency within each branch of civil law,Footnote ³⁹ the prospect of horizontal application suggested for the first time the possibility of consistency, or parity, across areas of law. While some of the content of the Basic Law set the stage to break from the old paradigm and to adopt some version of horizontal application, it did not necessarily entail horizontal application by itself.Footnote ⁴⁰ Indeed, the reconstituted law provoked more questions than it answered with respect to the relationship between private law and public law and the obligations of private actors with respect to public law. And it certainly did not settle the question of German constitutional identity, particularly respecting the weight the civil law’s values would maintain in light of the evidently transformative additions to German fundamental law. Much was unsettled regarding horizontal application in the ensuing years as the twentieth century progressed.

Given Germany’s plural court system, these questions were as much about constitutional identity as they were about institutional power. Indeed, jurists from every area of law weighed in. Many legal scholars and jurists initially reacted by falling back on the orthodoxy of civil law systems, namely, that public law, now the Basic Law, had no influence on private disputes.Footnote ⁴¹ Some argued that the council responsible for the Basic Law simply was not authorized to adopt a constitution that affected private relationships, even if it had wanted to. Public law was, by definition, meant to give protection against government institutions insofar as they possessed more power, in contrast with private law that was framed to govern relationships among equals.Footnote ⁴² Still others argued against horizontal application in terms drawn from the Basic Law itself. As explained earlier, a few specific provisions suggest that the state has a duty to protect against private abuses (Article 1, Sections 1, 3) or that certain private relationships are, in fact, held to a constitutional standard (Article 9, Section 3). The presence of such provisions could imply that other parts of the Basic Law were not intended to bear on private relationships.

Other scholars challenged the conventional wisdom that the civil law system required a strict separation between public and private law. Quint explains the argument made by some that earlier conceptions of basic rights did not in fact distinguish between public and private offenders.Footnote ⁴³ Presumably, too, recent events had demonstrated the ways in which private entities could inflict great harm, whether in consort with state authorities or independently. Hans Carl Nipperdey, chief judge of the Federal Labor Court from 1954 to 1963, believed as much and led the Labor Court in arguing for a conception not merely of horizontal application but of direct horizontal application, meaning the Constitution itself could create duties of private individuals rather than simply influence private interchanges through private law.Footnote ⁴⁴ In a series of cases, before and even after the Constitutional Court decided Lüth, the Labor Court adopted this position that basic rights, and particularly those rights that are most constitutive to the German project, could be deployed directly against private individuals. Indeed, these rights were so important as to constitute “general rules for the governance of all of society.”Footnote ⁴⁵ Nipperdey and other advocates of direct horizontal application cited elements of the Basic Law itself in support of their position. For example, Article 20 Section 1’s description of the polity as “a democratic and social federal state” suggests that some intervention of the state in private affairs was permitted “to ameliorate various forms of societal, rather than governmental, oppression.”Footnote ⁴⁶

The Labor Court certainly had strategic incentives to argue in favor of direct horizontal application, insofar as this move allowed the Labor Court to touch what was previously beyond its reach – the Basic Law. Indeed, this approach would effectively place the Labor Court alongside the Constitutional Court as “an alternative source of constitutional adjudication.”Footnote ⁴⁷ Other jurists and scholars of private law came to opposite conclusions, however, fearing that the ultimate result of horizontal application would be not to expand the domain of the private law courts, such as the Labor Court, but to expand the role of the Constitutional Court as overseer of private law. Arguably, such jurists and scholars had reason to resist horizontal application also, to ensure their status as experts and final arbiters in their respective areas of law.Footnote ⁴⁸

Within these strategic considerations one may interpret a real intellectual disagreement, a clash of visions, about the identity of the new German constitution and how seemingly competing values would relate in the future. Some scholars understood the system of law to be essentially the same as before. Human dignity and other values that gained expression in the Basic Law certainly changed the landscape of constitutional law but, such arguments maintained, bore neither on the essential civil law framework nor on the governance of private relations. Others, most notably Nipperdey, took the new content of German fundamental law to be more transformative, to include a new charge to order civil society according to the principles of the Basic Law.Footnote ⁴⁹ Many parties had a stake in these questions and found support for their preferred answers in the particular factors they chose to emphasize out of the seeming disharmonyFootnote ⁵⁰ – whether they found an institutional separation built into the civil law, which was thought also to support individual autonomy, or perceived an expanded social character the Basic Law introduced to the constitutional-legal schema. Such interpretations appear in particular decisions of the civil courts leading up to the Constitutional Court’s decision in Lüth.

In 1954, the Federal Court of Justice first held that personality rights (i.e., the right to freely develop one’s personality under Article 2) could be applied horizontally in the Schacht case.Footnote ⁵¹ Just six months later, the Labor Court would argue for direct horizontal application, declaring that certain rights were so constitutive to the Basic Law that they ought to apply to public and private actors alike.Footnote ⁵² The case involved an employee who was fired for distributing pamphlets in support of the Communist Party at his workplace, thus implicating Article 3 Section 3 (prohibiting discrimination on the basis of political views) and Article 5 Section 1 (guaranteeing the freedom of expression).Footnote ⁵³ Though the Court decided in this particular case that the employer had dismissed the employee for reasons not related to political censorship, they took the opportunity to declare that the Basic Law did create rights obligations for employers and other private actors. Quint translates part of the opinion, that certain fundamental values “entered into [the basic legal] framework, and neither the organization of a workplace nor agreements nor acts of legal peers should be allowed to contradict those values … Thus these basic rights affect not only the relationship of the individual citizen to the state, but also the interrelationship of the citizens as legal equals.”Footnote ⁵⁴

The Labor Court thus staked its territory in the debate over the nature of the Basic Law and its ability to reach private relationships. The Basic Law, the Court argued, furnished guidelines (or an ordre public) for organizing the larger German society. While the catalog of individual rights in the Basic LawFootnote ⁵⁵ certainly featured in these decisions and continued to form the content of German law, the Court also drew from the idea of social justice (Sozialstaatsprinzip) present in Articles 20 and 28 to justify their broader view of what the Basic Law aimed to accomplish.Footnote ⁵⁶ Moreover, although the Labor Court’s reasoning was grounded in a conception of freedom, it was a more expansive conception that sought to account for the realities of power relationships and discrepancies in bargaining positions.Footnote ⁵⁷ One might say, in the terms of this book’s republican framework, that it transcended freedom as noninterference in favor of something akin to freedom as nondomination.

The Labor Court would continue in this vein a few years later in the ZölibatFootnote ⁵⁸ decision. In this case, a woman was dismissed from her job at a hospital when she got married, as she had violated a term of employment requiring that workers remain single. The Court considered deciding the case on the basis of certain potentially relevant provisions of the Civil Code.Footnote ⁵⁹ However, it instead opted to continue developing the concept of direct horizontal effect of constitutional rights, deciding the case on the basis of Article 6 Section 1 (protecting marriage and the family) as well as Article 2 Section 1 (guaranteeing free development of personality).Footnote ⁶⁰ The Court doubled down on the claim of its previous decisions that private relationships and transactions ought not to contradict the ordre public established by the Basic Law. Nipperdey argued:

The immediate result of this line of argument was to expand the protections offered by constitutional rights by recognizing employers and other private actors as themselves having constitutional duties. Nevertheless, Nipperdey’s reasoning reveals an additional innovation that constitutional rights mandate a particular social order. What in one sense was an expansion of rights protections was in another sense a directive that private actors “uphold the public order and the common good.”Footnote ⁶² In this way, the Labor Court argued for a constitution that weighted parity in applying the Basic Law greater than the prior distinctions of the civil law system, and that weighted constitutional ends and their corresponding duties greater than certain exercises of rights.

In arguing specifically for direct horizontal application, moreover, the Labor Court showed some readiness to dismantle the distinction between public and private, previously thought essential in guaranteeing individual freedom.Footnote ⁶³ Jud Mathews suggests that the constitutional theory underlying such decisions in the Labor Court had an “anti-individualistic and antiliberal” bent.Footnote ⁶⁴ In fact, some German scholars find enough in these decisions to argue that “this orientation toward the priority of collective interests over individual interests reflects a holdover from the labor law doctrines of the Third Reich.”Footnote ⁶⁵ Nipperdey’s interpretations track the pre-Basic Law version of private law, which was “a very value-laden, not liberal, national socialist private law.”Footnote ⁶⁶ The “national socialist, anti-liberal … way of doing politics” informed the private law so that it almost always privileged the objective order over the subjectivity we find in liberalism.Footnote ⁶⁷ Put differently, Nipperdey “domesticizes, civilizes, constitutionalizes that idea [of prioritizing the objective] into German labor law.”Footnote ⁶⁸ The Labor Court’s judgments put much weight on the capacity of rights to dictate social goods and thereby expressed much confidence in restructuring institutions that were previously thought necessary to protect freedom in the German constitutional order. Put differently, the discourses coming out of the Labor Court at this time suggest a readiness, indeed an eagerness, to adopt a conception of the common good in labor law, governing even private sectors according to objective public values.

Despite the Labor Court’s argument that the Basic Law established a new ordre public, the question of horizontal application was by no means settled. In its decisions, the Labor Court had identified one possible equilibrium amid the disharmony in German law as it had been reconstituted, choosing to emphasize the principles of the Basic Law as obligating a wider expanse of German society and even obligating private actors directly. This was in contrast with the legal orthodoxy that still persisted even after 1949 when the Basic Law was adopted, that separation between public and private spheres and systems of law was essential and served such values as Privatautonomie. The Federal Constitutional Court would refer to these positions as two “extreme” views,Footnote ⁶⁹ suggesting that there could be another, intermediate interpretation of the German constitutional order and, moreover, that such an alternative may be preferable. And indeed, just a few months after the Labor Court decided the Zölibat case, the Constitutional Court offered its own take on the question of horizontal effect as the supreme authority responsible for interpreting the Basic Law.

The Lüth Case: Challenging and Preserving Civil Law

In 1958, the Constitutional Court handed down the Lüth decision,Footnote ⁷⁰ a case that continually features in scholarship as foundational for the practice of horizontal application. The facts of the case appear in Chapter 2, but I present them again here for the sake of a thorough analysis. After being acquitted of war crimes for producing an anti-Semitic film during the war, former Nazi propagandist Veit Harlan directed a new film in 1950, the title of which translates to Immortal Beloved. In response, journalist Erich Lüth called for a boycott of the film. Harlan, in turn, called for an injunction against Lüth on the grounds that he intended to harm Harlan’s economic prospects. The district court in Hamburg granted the injunction, only for it to be overturned in 1958 when the Federal Constitutional Court finally weighed in. As explained in Chapter 2, the Constitutional Court took issue with the fact that the lower court had not properly accounted for the Basic Law’s “order of objective moral and legal principles” – that is, the fact that the Basic Law establishes not only subjective rights (that create rights obligations between particular parties) but also principles to guide the life of the broader polity. These principles had a “radiating effect” on all sectors of German law for which all courts had to account. The lower court had consequently erred when it held that the Civil Code alone governed the case’s outcome without considering how the values of the Basic Law might intervene in the calculus. The Constitutional Court was careful to stipulate that this was still ultimately a dispute between private persons and, as such, ultimately governed by the Civil Code. Nevertheless, Lüth’s right to the freedom of expression (guaranteed under Article 5 Section 1) was also relevant to the question at hand as a commitment of the Basic Law. Moreover, though all provisions of the Basic Law were potentially relevant to such calculations, the right to freedom of expression was of particular import insofar as it was “absolutely constitutive” (schlechthin konstituierend) in a liberal constitutional order.Footnote ⁷¹ The fact that this was a dispute between private actors did not exempt the courts from considering how the relevant provisions of the Civil Code comported with the commitments of the Basic Law and particularly such foremost guarantees as the freedom of expression.

That the Constitutional Court’s decision in Lüth employed a doctrine of horizontal effect would seem to follow from the Labor Court’s preceding decisions. Indeed, both Courts conceive of rights as objective values aiming toward a common good of society. Moreover, both grounded their decisions in a concession that such values could be abused in the context of private relationships and interactions with the state alike. Crucial, however, was the difference in mechanisms employed by each court. In Lüth the Constitutional Court struck a kind of middle ground in deciding that the values of the Basic Law applied to private actors only indirectly, that is, by way of their influence on private law. Thus, government actors across branches were charged with ensuring the compatibility of law with constitutional values, from the initial processes of legislation to the interpretation of law in courts. In so reasoning, the Constitutional Court charted a middle path between two “extremes,” departing from a strict understanding of the separation between public and private law as well as from the Labor Court’s argument that the Basic Law itself creates duties of private actors. First proposed by eminent law professor Günter Dürig, this intermediate position of indirect horizontal effect was quickly accepted, even praised, by scholars and jurists alike.Footnote ⁷²

The decision in Lüth and the particular way in which the Constitutional Court developed horizontal effect for the German polity marked a sort of moment of truth with respect to both the larger architecture of law and courts, as well as the actual content of law. With respect to the architecture of law and courts, some legal scholars have questioned whether the indirect effect that Lüth introduces actually produces outcomes different from those that would be produced under direct horizontal effect. Both ultimately entail the balancing of rights, the argument goes, even if the indirect method involves the intermediate translation into private law.Footnote ⁷³ While this is an important point and perhaps true in some cases, it does not fully appreciate the theoretic difference between these methods of horizontal application given the particularities of the German system, or the practical fact that constitutional actors themselves view them as meaningfully different. In its formulation, the Constitutional Court arguably found a balance between competing narratives associated with the old civil law system and the primacy of new constitutional values. More than a mere symbolic difference, moreover, the adoption of indirect horizontal effect has the practical result of keeping the civil law, and all its attendant discourses, relevant in such balancing considerations. The Constitutional Court did not decide that the Basic Law controlled all outcomes, just that it had to be considered against the existing rules of the civil law.Footnote ⁷⁴ In this way, the Court preserved the potential of the Civil Code, and its attendant discourses, to factor into cases as a separate source of content and values.

In navigating old and new legal traditions in this way, moreover, the compromise in Lüth had the practical effect of preserving largely intact and distinct systems of law and courts. As Michelman explains, horizontal application in Germany is limited by the very fact that it operates in a dualist system of civil law and constitutional law.Footnote ⁷⁵ Following Lüth, the Constitutional Court did expand its power to hold civil law questions up to a constitutional standard.Footnote ⁷⁶ Nevertheless, even after Lüth, the Court spoke of “honoring this restriction of its competence”Footnote ⁷⁷ and of not using this new power to encroach on the interpretive role of its counterpart apex courts. It insisted that courts at every level and even the legislature show due consideration for the principles of the Basic Law, but did not insist on any particular interpretation of these principles, so long as the ordinary courts’ balancing was not egregiously off.Footnote ⁷⁸ Furthermore, the private law courts remained the final interpreters in their respective areas of law wherein the Constitutional Court largely refrained from interfering. Indeed, beginning in Lüth and continuing in subsequent horizontality cases, the Basic Law’s influence reaches only to a couple of specific provisions in the Civil Code known as the “general clauses.” One of the most important of these, Section 826 of the Civil Code, states: “Whoever intentionally causes injury to another person in a manner contrary to good morals has the duty of compensating for that injury.”Footnote ⁷⁹ The Civil Code’s reference to “good morals” seems to admit some external standard of evaluation,Footnote ⁸⁰ and the Constitutional Court exploited this opening to bring the principles of the Basic Law to bear on private law. In so doing, however, it effectively limited its own interpretive authority to these particular provisions so as not to fashion itself as a “super ordinary court”Footnote ⁸¹ that can reinterpret any provision of the Code as it wishes. In those instances when the Constitutional Court cannot reach a “constitutionally satisfactory solution” without breaching jurisdictional divides, it actually looks to the legislature to revise the law.Footnote ⁸² Thus, “simultaneous, colliding commitments”Footnote ⁸³ persist in Germany’s practice of indirect horizontal effect, as separate systems of law and courts persist alongside the idea that the Basic Law sets the standard across spheres.

In addition to preserving a separation of public and private systems and structures, Lüth may be described as sustaining a kind of liberal, rights-centric discourse with respect to the content of the law. Of course, the Court endorsed the need to propagate a society committed to certain common norms – the freedom of expression was prioritized in Lüth in part for its public value and not solely for Lüth’s private interests and rights as an individual.Footnote ⁸⁴ At the same time, the particular right of freedom of expression, even while enforced as a societal norm, is familiar and valued as an individual right in the liberal tradition. In the terms of this book, then, should Lüth be understood to signify a primacy of liberal, and not republican, discourses? Recall Chapter 2’s account of horizontal application as a republican vein in liberal constitutionalism. The republican interpretation advanced here does not claim that liberal values are no longer present, but that horizontality engenders new modes of discussing and disseminating these (and other) values, such that they may be interpreted no longer merely as rights but often come to be discussed as ends. Freedom of expression is described in Lüth not only as a right but also as part of the content of an “objective moral order,” a kind of common good for which a wider range of actors becomes responsible. Also worth noting is the role dignity plays in Lüth’s defense of freedom of expression, as discussed earlier. Discourses of human dignity characterize much postwar constitutionalism and, in its common associations with social welfare, generally ask more of society than do older accounts of liberalism.

The Basic Law and Lüth’s interpretation of it thus marked a change in German law, turning the putative neutrality of Weimar toward a system of objective values. Nevertheless, the Constitutional Court preserved certain traditional understandings present in interpretations of the Civil Code and contrary to the Labor Court’s endorsement of direct horizontal application. Indeed, in one telling, the Constitutional Court adopted indirect horizontal effect in lieu of direct effect in an effort to preserve a particular conception of liberty and prevent it from turning into a duty, per se.Footnote ⁸⁵ In sum, while new language about the obligations of private individuals emerged with this new societal morality, older discourses emphasizing individual rights and such values as autonomy persisted. Perhaps illustrative of this, on the very same day the Court decided the Lüth case, it handed down another decision in which the right to freedom of expression itself gave way to “certain traditional property interests.”Footnote ⁸⁶ Various episodes in the years following Lüth evince persistent disharmony in constitutional discourses, efforts both to preserve old structures and understandings and to foster a common obligation to constitutional norms in society.

As the Court in Lüth preserved some domain for private law in settling on indirect horizontal application, some perceive the “reassertion of private law” in such subsequent decisions as the Mephisto case.Footnote ⁸⁷ This 1971 decision involved a novel, entitled Mephisto, whose main character was modeled on the life of German actor Gustaf Gründgens. Klauss Mann, the author, had formerly been friends with Gründgens. While Mann admitted that certain details of the character were based on the actor’s life, he insisted that he did not intend the novel to be a portrait of any particular person. Nevertheless, Gründgens’s heir filed an action against Mann under the Civil Code’s general clause 823(l), providing a civil remedy against infringement on “the life, body, health, freedom, property” of Gründgens.Footnote ⁸⁸ In its judgment, the Constitutional Court interpreted the constitutional rights of human dignity and free development of personality (Articles 1 and 2, respectively) to encompass – that is, elevate to constitutional status – these rights formulated in the Civil Code.Footnote ⁸⁹ In other words, the Civil Code actually gave content to the Basic Law, insofar as the Court incorporated these traditional formulations into its understanding of human dignity and personality. In this way, these rights could be balanced against and even take precedence over such rights as to artistic endeavor (Article 5 Section 3) that occur in the Basic Law explicitly.Footnote ⁹⁰ One might speculate how Mephisto and other cases might have differed had the Labor Court’s approach of direct horizontal application gained traction. Specifically, constitutional rights obligations would have applied to private actors directly. Thus, private law would not serve as a necessary intermediary or enjoy the same opportunity to bear on decisions as a unique source of values.

While Mephisto goes further than many cases in the extent to which the Civil Code informs constitutional interpretations, it is not unique in putting into dialogue private law and the Basic Law and, more to the point, holding up the private law as a source of values in its own right. The earlier Blinkfüer case also translated the Civil Code into constitutional terms, finding that the freedom of the press (Article 5 Section 1) supported claims under the aforementioned clause 823(1) of the Civil Code. In this case, the leftist magazine Blinkfüer won against the freedom of expression of a conservative publisher calling for a political boycott of the magazine.Footnote ⁹¹ Moreover, in the 1973 Soraya case, the Constitutional Court leveraged the constitutional right to personality in order to compel a remedy corresponding to the Civil Code’s protection of personality rights. On the one hand, some argue this step constitutes a rewriting of the Civil Code to align it with the Basic Law, insofar as the Code expressly states that “intangible and nonpecuniary harms” could not be rewarded for damages.Footnote ⁹² However, with the introduction of horizontal application, even its indirect form, we would expect that constitutional values bear on private law in such ways. What is unique in the German jurisprudence, and what we see in such cases as Blinkfüer, is the way the Civil Code maintains a certain stature in argumentation and is put into dialogue with the Basic Law, in spite of the primacy and “radiating effect” of the latter.Footnote ⁹³ That this maintenance of traditional structures is not universal will come into sharper relief in Chapter 6’s discussion of the common law of South Africa, which, after some institutional and doctrinal struggles, is more completely beholden to the South African Constitution and which, importantly, falls entirely within the jurisdiction of the South African Constitutional Court to uphold or modify.

Initial Limits and Persisting Tensions in Horizontality

The tensions that accompanied the move toward horizontality continued not only in institutional and legal divisions between the private law and public law but also arguably in understandings of the Basic Law itself. As the previous section explained, the Basic Law’s commitment to such values as human dignity revised more traditional understandings of rights, the public–private distinction, and other liberal values. Still, Jorg Fedtke interprets the catalog of rights in the Basic Law as having continuity with prior understandings and as basically “classical-liberal in character.”Footnote ⁹⁴ Following human dignity as the foundational value come “an extensive range of individual freedoms,” including,

In addition to these enumerated rights, the right to “free development of personality” has since been interpreted by the Constitutional Court as a kind of “catch-all right,” protecting a vast range of liberty interests so as to make the Bill of Rights essentially comprehensive.Footnote ⁹⁶ After a couple of decades, the priority of these rights seems to have settled into the popular imagination. Jud Mathews explains that 1959–1974 constituted “the high phase of liberalization in Germany.”Footnote ⁹⁷ Mathews cites as evidence a series of public opinion polls conducted in Germany between 1949 and 1963 that asked respondents to rank different rights in order of importance. In 1949, 35 percent of respondents identified freedom from want as most important, in contrast with 26 percent who selected freedom of expression. By 1963, in contrast, only 15 percent of respondents selected freedom from want, while 56 percent identified freedom of expression as most important. Moreover, in a 1964 poll, German voters ranked freedom as a more important value than either order or prosperity.Footnote ⁹⁸

This apparent surge in liberal values also tracks the sorts of rights that tended to be applied horizontally, in this particular era and in general. The aforementioned cases illustrate the prevalence of such rights as freedom of expression, freedom of the press, and free development of personality in Germany’s earliest and most foundational horizontality cases.Footnote ⁹⁹ It was in this rights context and larger milieu that horizontality developed and came to be accepted in German legal practice. The “objective system of values,” propagated with horizontality, engendered discourses among constitutional actors concerning the need for parity across spheres of life. As the above cases illustrate, however, such arguments for parity remained tied to a particular catalog of rights and liberties and yielded to separate systems of law and courts. And so, it was in this context that the civil courts also adopted the practice of horizontality, particularly after a few cycles of judges had the chance to complete clerkships at the Constitutional Court and return home to their primary court appointments in the ensuing years.Footnote ¹⁰⁰ Moreover, with the adoption of the additional feature of the individual constitutional complaint, by which individual citizens could directly raise claims of constitutional violations, horizontal application became part of the “daily job” of the Federal Constitutional Court.Footnote ¹⁰¹

Even still, the civil courts dispute how the Constitutional Court applies constitutional values to private law in certain instances, sometimes questioning the definitions of such terms as “property,” “takings,” and “freedom of contract” as employed in constitutional law.Footnote ¹⁰² Admittedly, any objections now come in the context of discrete cases rather than as wholesale challenges to horizontal application as a practice.Footnote ¹⁰³ That horizontal application has largely been accepted, though, is not to minimize the changes it brought to German civil law. For the first time, private lawyers had public lawyers telling them they interpreted the law incorrectly, and these private lawyers initially feared that the public lawyers would remake private orderings in the image of public law.Footnote ¹⁰⁴ In this book’s terms, their worries reflect how the Basic Law and, more specifically, the mechanism of horizontal application would bring a new parity across German systems of law and spheres of life. Meanwhile, the traditional, largely liberal ethos historically associated with private law lived on in such people as Werner Flume, a towering figure in German private law who emphasized freedom of contract throughout his decades-long career. Flume and others like him went so far as to argue that German constitutional law had become nothing less than an instrument by which “to objectify the private liberal free coordination of subjects through contract.”Footnote ¹⁰⁵

While Flume’s perspective was continually present, it remained a mere strand of German legal thought, as horizontal application was increasingly embedded in legal practice. Of course, the nature of the rights applied horizontally in early cases did not typically call for a deep change in German society or in the behavior of individual private actors. A kind of rights-centricity could coexist alongside the language of this new constitutional morality in discourses surrounding horizontal application. One might describe those duties with which private actors were charged as growing out of accepted orthodoxy and already part of the societal status quo. In contrast, when the conversation eventually turned to the horizontal application of equality rights and antidiscrimination, the tenor of the discourse shifted. Old anxieties seemed to be resurrected and new anxieties born as certain constitutional and private actors expressed concern over the impact of new applications of horizontality on individual liberty and autonomy. In the arguments and events of ensuing years, sectors of both the juristic and general populations seemed to treat these developments as a turn to ensconce certain constitutional rights as ends in themselves and to do so at greater expense to other rights than had previously characterized horizontality.

Equality in the Private Sphere

While the early questions surrounding horizontality largely subsided, constitutional actors rarely applied Article 3’s right to equality horizontally until recently. It seems to have taken the outside force of the EU to initiate such an expansion, when the European Council directed Member States to implement antidiscrimination measures in 2000.Footnote ¹⁰⁶ Only after these developments did the German Constitutional Court depart from its conservative approach to Article 3’s equality provisions to consider the possibility of their horizontal application.Footnote ¹⁰⁷ Scholars explain how the Court previously considered equality cases under the lower standard of “arbitrariness review as opposed to a more intensive proportionality review.”Footnote ¹⁰⁸ Laurie Ackermann, former justice of the South African Constitutional Court, tells a similar story of German constitutionalism:

Günter Dürig offers a coinciding account, seeing freedom under the Basic Law as “the primary manifestation” of human dignityFootnote ¹¹⁰ and, moreover, that “a preference for freedom as against equality has been established.”Footnote ¹¹¹

The few times that equality was applied horizontally before the EU introduced its directives occurred in the Labor Court, consistent with that court’s approach to horizontal effect since the 1950s.Footnote ¹¹² The Labor Court has been quicker to rely on the constitutional commitment to equality in adjudicating fair relations between employer and employee.Footnote ¹¹³ Insofar as the labor courts’ jurisdiction is circumscribed to labor law, the German legal community generally acknowledges that their area warrants more searching consideration of social power and even the continued application of direct horizontal effect.Footnote ¹¹⁴ In light of this tendency of the labor courts to give more weight to equality, it is not surprising that they largely allied with the European Court of Justice (ECJ) after the issuance of the 2000 antidiscrimination directives. The High Labor Court even asked the ECJ for preliminary references about the requirements of these new policies, while the Constitutional Court instead followed along only to the extent that was required.

Although equality was certainly present in the Basic Law, it did not feature prominently in the context of private relations, a fact arguably consistent with the emphasis on Privatautonomie in certain sectors of German law discussed earlier. While German politics long possessed a strong welfarist streak, the value of equality did not extend further, for example, to include principles of antidiscrimination vis-à-vis gender, race, national identity, and the like. It may be the case that provisions for social welfare were understood as the functional equivalent of these protections, rendering the latter superfluous. Indeed, people from various sectors of civil society argued that such protections against discrimination would amount only to costly “red tape” and higher burdens of proof for private actors.Footnote ¹¹⁵ Ultimately, the external force of the EU shifted this status quo and pushed for the stronger horizontal presence of equality principles in the form of antidiscrimination legislation. The two directives that the European Council required in national law included Council Directive 2000/43/EC (the Racial Equality Directive) and Council Directive 2000/78/EC (the Employment Equality Framework Directive). The former aimed to bring all public and private law into line with EU equality norms, specifically concerning racial and ethnic discrimination. The latter directive, in contrast, aimed only to influence employment law, but required equal treatment across a range of classifications, including “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”Footnote ¹¹⁶ The German Parliament first attempted to implement these directives in the Anti-Discrimination Act (ADG) of 2001.Footnote ¹¹⁷ The Act generated much controversy from all sectors of German society, as politicians, jurists, and many others in civil society argued the Act “would go too far in curtailing the principle of private autonomy.”Footnote ¹¹⁸ Others argued that it was in fact necessary not to exempt “predominant sectors of social life from scrutinization” in order to take nondiscrimination seriously.Footnote ¹¹⁹

In his contemporaneous analysis of the arguments surrounding the ADG, Georg Sommeregger recounts some scholars’ worries about the proposed legislation:

While preserving a private sphere permits diversity of views, abolishing the public–private divide, as the new legislation was understood to do, would entail “subjecting private action to the same moral yardstick (or values) as are valid for public agents.”Footnote ¹²¹ The argument continues that this would result in “crushing … the possibility of private choice by ‘public virtue.’”Footnote ¹²² The prospect of bringing the value of equality to bear on private spaces thus yielded strong reactions for the very reason that it would require individuals in the private sphere to adhere to a public formulation of a kind of common good. Sommeregger stipulates, however, that this parity (what he calls “value monism”) was only required in select areas and with respect to particular categories. The legislation did not entail a blanket requirement that all private choice conform to public standards, but only that some private choices conform. On this basis, he concludes that the legislation “did not introduce a new paradigm but shifted the line between uncensored and censored private behavior (too far for some), with the result that the private sphere is decimated without being liquidated conceptually.”Footnote ¹²³ The appropriateness of such shifting of the public moral yardstick into private spaces ultimately amounts to a political question, the answer to which likely depends on a given country’s particular history, commitments, and public opinion.

In many ways, these fears about the consequences for autonomy echo those same fears articulated in the run-up to the Lüth case in the 1950s. Nevertheless, the antidiscrimination legislation stirring up those fears is different from the initial move to horizontality in Lüth in a couple of ways. First, the content of the rights in question is qualitatively different from those that had been given horizontal effect in prior decades.Footnote ¹²⁴ Sommeregger explains, “In the horizontalization of other fundamental rights the fundamental tension between liberty and equality is in the background, whereas in the case of the antidiscrimination legislation it comes to the fore because of the fact that equality itself is the object of horizontalization.”Footnote ¹²⁵ This book’s argument presumes that horizontal effect always entails parity, insofar as it always brings public values to bear in private spaces. Thus, even when more negative, classical rights are at issue in a case, one of the parties will still be required to conform to those attendant values of the Constitution – for example, the freedom to develop human personality in Mephisto, or the freedom of the press in Blinkfüer. To this extent, the EU directives and subsequent legislation of the German Parliament were not different, but simply added new rights to the catalog of those that would in some way be applied horizontally.

At the same time, the nature of the duties incurred is somewhat different in comparing negative classical rights with equality rights horizontally applied. The difference in duties is even more apparent in the potential positive duties of private actors considered in the context of South Africa in Chapter 6. Presumably, this heightened potential for the constitutional duties of private actors might be felt all the more in some corners given certain regnant elements of German legal history and tradition, such as the system of civil law, recounted earlier. Moreover, the consensus that such values inspired was in certain ways embodied in the liberal surge of the postwar years. In Sommeregger’s terms, a kind of “value monism” with respect to these more classical rights did not give rise to controversy. When the prospect of individual duties pertaining to antidiscrimination arose, however, many expressed anxiety that the consequent new duties would touch subjects that comprised a continued “value pluralism” in German society. Put differently, regarding the ADG, some private actors expressed that the content of those rights for which private actors would be held responsible would potentially conflict with their priors.Footnote ¹²⁶

Unlike the early judicial debates that preceded Lüth, the shift to apply equality and, more specifically, antidiscrimination horizontally occurred through legislation, first through the European Council and then the German Parliament.Footnote ¹²⁷ Whereas the practice of horizontal effect in courts applies rights obligations to private actors in single, isolated cases, the developments following the EU directives came through legislation and, therefore, amounted to a change in the very “base-line of private law.”Footnote ¹²⁸ Claims to autonomy, people feared, would no longer be balanced or weighed on a case-by-case basis, but would necessarily yield to equality. As Sommeregger puts it, “The moral standard (one and only) of the community trumps the individual moral standards (resting on personal choice) of the individuals in the specific fields.”Footnote ¹²⁹ While a common objection to horizontal application is that courts are not politically accountable in the same way as legislatures, the more typical objection to the ADG was less about the venue of decision than about “this move of public virtue into the private sphere” at all, regardless of origin.Footnote ¹³⁰

When it comes to the horizontal application of equality and the debates surrounding the ADG, the republican framework of this book amounts to more than an interpretive lens. Rather it captures and articulates how many political and private actors themselves interpreted these developments. Sommeregger’s account, for example, suggests that many recognized the reach of public values into more sectors of society as establishing a kind of common good, likely to entail more extensive duties of private actors and compromise of private interests. Again, this is in contrast with the kinds of rights that had previously been applied horizontally in German constitutional practice, such as freedom of expression and freedom of the press, that did not typically require extensive positive action on the part of private actors. On some level, the Basic Law and Lüth’s interpretation of it were always premised on a need to build a polity on certain common values after the Second World War; however, this commonality had only extended so far into the private sphere prior to the EU’s antidiscrimination directives. On this basis, perhaps it is unsurprising that the impetus to extend horizontal application further came from EU institutions, that is, sources external to Germany.

Ultimately the ADG failed under this political opposition to public mores in the private sphere. Moreover, the ensuing controversy led parliament to change the law actually to allow more discrimination, specifically in lessening protections for workers dismissed from their jobs on the basis of age.Footnote ¹³¹ Nevertheless, EU institutions stood their ground on the issues at stake when, in the 2005 Mangold case, the ECJ described antidiscrimination as one of the EU’s “general principles” that ran deeper than the recent directives, thereby insisting on German compliance. While the Constitutional Court, in response, might have reasserted “control over equality law in Germany,” it followed the ECJ and, indeed, the German Labor Court, so as not to appear an opponent of equality.Footnote ¹³²

In 2006, the German Parliament managed to pass the General Equal Treatment Act (AGG) in fulfillment of the EU directives. Most decisions related to this legislation have since been issued by the civil courts and labor courts rather than the Constitutional Court.Footnote ¹³³ Indeed, very few cases invoking the AGG have been litigated at the federal level. Scholars suggest a couple of different factors to explain this, such as the difficulty certain groups (and particularly vagrant populations) have in accessing the German courts, as well as the short, two-month timeline individuals have to file antidiscrimination suits.Footnote ¹³⁴ Moreover, certain aspects of the EU directives have long remained unimplemented, specifically those areas such as education that fall under the competencies of the Länder (German federal states). Several states have attempted to implement these aspects of the antidiscrimination directives, but have been largely unsuccessful. Indeed, the same concerns surrounding the ADG and AGG have resurfaced in these subnational arguments.Footnote ¹³⁵ Amid myriad other factors figuring into these debates, some more resistant arguments may be understood in historical terms. Specifically, antidiscrimination had not previously been emphasized in German legal culture as much as civil liberties, “having comparably weak roots in the tradition of fundamental rights (and their adjudication by the FCC) as well as in public perception.”Footnote ¹³⁶ In this light, the hesitance displayed in arguments from various corners of German society is not necessarily surprising.

Equality and the Future of Horizontal Effect

After the events surrounding the EU directives and the AGG, whether and when Article 3’s equality provisions might apply horizontally also became the subject of much debate. The arguments surrounding these later debates offer additional insight for interpreting horizontality in a republican light. The Constitutional Court finally took up the question of the horizontal application of Article 3 in 2018 in the Stadium Ban case. In this case, a sixteen-year-old fan of a German football club was permanently banned from a stadium for disorderly behavior.Footnote ¹³⁷ The individual filed a constitutional complaint, arguing that the ban violated his constitutional right to the free development of personality “in light of the paramount significance of football for social life and the importance attached to it by the general public and society.”Footnote ¹³⁸ Although the Constitutional Court agreed that the facts of the case did implicate questions of constitutional rights, they found the issue was not the youth’s right of personality but his right to equality under Article 3(1) insofar as he was treated differently from other stadium attendees. Thus, the task of the courts was to balance this protection against unequal treatment under Article 3(1) against the football club’s guarantee of private property under Article 14(1).

The Court was careful to stipulate, however, that Article 3(1) “does not give rise to an objective constitutional principle,” such that private actors would generally have a duty to uphold equality rights. Rather, the Court reiterated the liberal precept that “all persons have the freedom to choose – according to their own preferences – when, with whom, and under what circumstances they want to enter into contracts, and how they want to make use of their property in this context.” The young fan’s equality rights under Article 3(1) only applied to the football club, a private actor, in this instance because of the particular nature of the football club and the stadium. Specifically, these were institutions generally open to the public, forming a central part of social life, and maintaining a kind of monopoly over the sport of football. Even while subject to Article 3 requirements in this particular case, however, the Court determined that the football club had not acted arbitrarily in banning the young fan, but that the unequal treatment was justified by his conduct.

In many ways, the Stadium Ban case raised more questions than it answered. While on the one hand, it seemed equality rights might now apply horizontally, the extent to which this hinged on the particular facts of the individual case remained unclear. Legal scholars found a kind of ambivalence in the judgment and speculated that the Court may have had trouble reaching a consensus.Footnote ¹³⁹ Indeed, one could simultaneously read it as preparation for more to come or as a careful attempt to cabin the outcome to this single decision. The picture would only become murkier in the following year when the Court decided two additional cases concerning Article 3(1)’s equality guarantee. The first of these was simply a preliminary injunction that the Third Way, a far-right political party, filed against Facebook after the social media platform identified some of its posts as hate speech and temporarily restricted the party’s ability to post content.Footnote ¹⁴⁰ The facts raised questions about Facebook’s obligations with respect to equal treatment and whether social networks would be subject to Article 3 obligations, as was the football club in the Stadium Ban case. However, the Court decided only the question of injunction, granting the Third Way’s petition, rather than taking on the constitutional question at stake.Footnote ¹⁴¹

A few months later, the Constitutional Court confronted the possibility of the horizontal application of equality yet again when an official of the extremist right-wing National Democratic Party of Germany made a reservation for a wellness hotel. The hotel owner notified him that he could not stay, explaining that the official’s “political opinions were incompatible with the hotel’s mission to ensure that each and every guest could enjoy an excellent wellness experience.”Footnote ¹⁴² The Court reiterated the principle it articulated in the Stadium Ban case, that private actors were not subject to equality guidelines as a general principle, but only under specific circumstances. Ultimately, the Court decided that those specific circumstances simply were not present here; unlike the football club, the wellness hotel did not form a central part of social life and did not maintain a monopoly. Therefore, the party official could claim no right against which to balance the hotel owner’s right to property (Article 14(1)) and freedom to conduct a business (Article 12(1)). Moreover, the Court clarified that the prior Stadium Ban case had only treated the General Equality Clause of Article 3(1), rather than the Anti-Discrimination Provision of Article 3(3). While the Court explicitly left open the possibility that this provision might require something of private actors, it did not follow from the ruling that they are prohibited from discriminating on the basis of political opinion. Again, as Fabian Michl explains, private individuals “are free to decide who they favor or disadvantage, with whom to conclude contracts and to whom to grant access to their property, their pub or their hotel.”Footnote ¹⁴³ In this same spirit, the Court decided for the hotel in the name of freedom, once again not even reaching the question of balancing.

Where does this sequence of cases leave the question of equality’s horizontal application and, more specifically, a republican interpretation of horizontality? In many ways, the arguments of these judgments hinge on facts unique to the cases at hand – the cultural significance of football in Germany, for example, or historical experience with extreme parties. In Germany, a football stadium is not simply a sports arena but a public forum where citizens go to associate and participate in civic life. Full participation in society may be said to require admission in such a space, while the same cannot be said of the wellness hotel. Setting aside consideration of the factors that might explain the constitutional development itself, the arguments playing into these equality cases show an implicit hesitancy that is arguably relevant to a republican interpretation. Specifically, the judgments point toward a particular way of carving up the private sphere, as the Court understands certain private actors and spaces as contributing to (or detracting from) a kind of common good more than others. Insofar as certain private actors hold greater public import, they are more subject to constitutional values and accrue duties. Contextual particulars are crucial here, as football and a football stadium would not necessarily have the same meaning attached to them elsewhere and, consequently, would not be so relevant to a republican interpretation.

Rights and larger commitments related to equality in Germany thus bring to the fore discursive insights that bear on republican interpretations of horizontality. As explained previously and is true in other contexts, equality is often interpreted as requiring more of private actors than other rights commitments and, to this extent, shows the reach of a republican interpretation amid contextual particulars. Generally, discourses surrounding the horizontal application of equality have been weaker and more hesitant than, say, in the horizontal application of freedom of expression or freedom of the press in Germany. Considering the arguments that arose from the ADG/AGG saga and later debates focused on Article 3, the effect of constitutional values has not radiated so decisively when it comes to equality. However, later judgments have treated some spaces and actors in a way that suggests their heightened public significance or historical meaning and, on this basis, assign constitutional duties related even to equality.

Conclusion

In Lüth, the Constitutional Court declared that the Basic Law engendered an objective order of values and, thus, that the constitutional project aspired to influence broader reaches of society than had prior constitutions. In this way, the Court’s language signaled a transformative project for a reconstituted Germany. The idea that constitutional values should radiate beyond traditional bounds set a course for a project clearly more ambitious than traditional understandings of constitutionalism. Nevertheless, the fundamental structure of the legal system remained in place with Lüth, as the Court acknowledged that private law contributed to “the autonomy of the individual – and to the public good – and therefore should remain in effect … even when confronted by the countervailing objective and public values of constitutional law.”Footnote ¹⁴⁴ The Constitutional Court thereby reaffirmed the presuppositions of the civil law system so that the Basic Law could influence the private law but not supplant it.Footnote ¹⁴⁵ In pursuing this moderate course, the Constitutional Court in some sense nestled into the disharmony that had emerged between an enduring civil law tradition and the propagation of public values in private spaces.Footnote ¹⁴⁶

While horizontal application in some forms was broadly accepted and assumed into legal practice, a tension reminiscent of that latent in Lüth would surface in later debates surrounding the horizontal application of equality. In particular, the EU directives in 2000 aimed to add equality and antidiscrimination to the catalog of those commitments for which private actors would be responsible. As far as certain private actors and even some constitutional actors were concerned, this step to subject private spaces to constitutional ends went too far in encroaching on individual rights. While antidiscrimination legislation growing out of the EU directives ultimately passed the German Parliament, related questions about the horizontality of equality rights continue to be adjudicated in the Constitutional Court and other fora.

Describing the German constitutional project as transformativeFootnote ¹⁴⁷ can be helpful to understand what the constitutional drafters were up to in the wake of the Second World War, how the Constitutional Court interpreted that project in the following decade, and perhaps even later efforts to give greater effect to such values as equality. A transformative constitution makes clear space for something like horizontal application, which by definition extends constitutional commitments further into society than traditional understandings of constitutionalism would admit. Indeed, the history recounted in this chapter continually raises the question of what a transformative constitution might require in general and, more specifically, require of private actors. It is at this juncture that a republican interpretation becomes helpful.

This book’s republican framework does not necessarily provide normative answers to questions about what a transformative constitution should ask of private actors. Rather, it offers an interpretive lens to understand actors’ arguments around these questions. On the one hand, in debates about horizontal application in Germany, we might perceive an embrace of constitutional ends as a kind of common good and, consequently, an embrace of the corresponding duties that follow citizens. On the other hand, arguments in later debates surrounding equality suggest reservation concerning particular ends and the resulting “value monism,” to use Sommeregger’s phrase. Indeed, an easy embrace of ends and duties is not evident in the later sequence of events or in the arguments pertaining to antidiscrimination. Instead, the discourses emerging from later debates about equality favor more conventional understandings of rights, aligned with a conception of separate spheres, separate systems of law and courts, and so on. Put differently, this book’s theoretic lens evinces complexity in the German context, namely, a waning of republican-inflected language about constitutional ends or a common good and renewed emphasis on rights discourses.

In Chapter 6, similar insights emerge out of the South African context, arguably the paragon of transformative constitutionalism. Debates in both Germany and South Africa largely presuppose that public ends will bear on private spaces to some extent. Yet, how far and in what ways these public ends can reach vary across these constitutional contexts and even across institutions and individual actors within each context. Under the new dispensation in South Africa, debates have centered not so much on whether constitutional commitments may apply horizontally in one space or another but on what such commitments may require specifically of private actors, say, with respect to positive rights. As ever, factors countervailing against horizontal application also influence the debates; political interests rooted in the Apartheid era, as well as a kind of legal formalism, correlate with more traditional articulations of rights. At the same time, much of the constitutional discourse from a range of actors includes some basic admission that the South African constitutional project aims for and requires more of its citizens than other constitutional orders.

Among the numerous national constitutions adopted throughout the twentieth century, that of South Africa stands out for the transformation to which it aspires. Frank Michelman goes so far as to describe it as “postliberal.”Footnote ¹ In the early 1990s, the long-dominant National Party, which had perpetrated Apartheid, and the African National Congress (ANC), founded in response to the racist system, approached the negotiating table to reconstitute the country. Horizontal application fit naturally in this transformative project. As Apartheid had permeated all spheres of life, so too would such values as dignity, equality, and freedomFootnote ² need to suffuse even private life. In this understanding, the constitution could not but call for parity between public and private spaces and hold at least some private actors responsible for these new commitments. A certain egalitarian bent consequently characterized much of the discourse, as distinct from more traditional discourses that emphasize classical political rights over socioeconomic rights, and vertical relationships over horizontal.

Whereas Germany’s adoption of horizontal application came through the Federal Constitutional Court’s decision in Lüth, much of the groundwork for horizontal application in South Africa was laid in the deliberations preceding the adoption of the Constitution. Ultimately, the text of the Final Constitution itself provides for broad application of horizontality. Indeed, Nick Friedman describes horizontality as practically necessary given the nature of the constitutional project. He states:

Republican principles can easily be read into this account of horizontality and the South African constitutional project – the recognition of duties vis-à-vis community, moral duties of one to the other, a shared future. Also striking is the way Friedman attributes dignity (a concept with a long republican pedigree) to duty-bearers and rights-bearers alike. There is a sense here in which the maintenance and execution of constitutional duties presupposes membership in a common project. In this light, the South African Constitution and the large-scale malaise it aims to ameliorate make clear space for horizontality and a republican interpretation of horizontality at that.

What specific role, then, does this chapter play in the book’s project to interpret the practice of horizontal application through the lens of republican political theory? First, that the South African project aimed at thoroughgoing transformation in the way and to the degree it did sets it apart from other constitutional contexts this book considers. Of course, Germany’s Basic Law can and has been described as transformative.Footnote ⁴ The German Federal Constitutional Court accordingly adopted horizontal application on the basis that constitutional principles create an “order of objective moral and legal principles” that “radiates” to both public and private spheres of life, as described in Chapter 5.Footnote ⁵ However, the Constitutional Court set limits on horizontality in the realm of equality rights, limits which only began to be broached some fifty or sixty years after Lüth was decided. In contrast, issues directly connected to equality, such as housing and education, have gained increasing salience in South African constitutional politics. While both the German and South African Constitutions have been dubbed transformative, the South African Constitution’s explicit and broad provision for horizontal application arguably points toward a different conception of transformation and thus provides different ground on which to read horizontality as republican. From early initiatives of the ANC to later decisions of the Constitutional Court, South African constitutionalism proves quite receptive to republican interpretations and often echoes republican values.

However, some scholars and political observers take issue with this characterization of the South African Constitution as transformative. Emile Zitzke argues that what are often seen as transformative aspirations in South African private law and human rights do not ultimately address the problems arising from the country’s colonial past. Specifically, the new order’s Eurocentric roots inhibit full decolonization, a level of transformation that might be possible if African concepts were employed as meaningful reference points instead.Footnote ⁶ Perhaps more critically, Joel Modiri emphasizes how, as a product of negotiation and compromise, the new constitution actually preserves the interests and powers initially secured through racial oppression.Footnote ⁷ The space of this book does not allow for the full discussion these critiques merit. At the same time, the fact that the book’s project is primarily analytical and theoretic, rather than normative, allows some liberty to take the South African Constitution at face value – to consider the transformation it does imply, though a different and more transformative project may be conceivable. As this book maintains, horizontality exists within the liberal constitutional milieu even as it marks a kind of digression from certain renderings of that milieu. At the same time, it seems safe to say that, as a descriptive matter, the South African Constitution does mark some real change from the prior order, though that change falls short of certain normative assessments.Footnote ⁸

Even within the scope of this project, however, fears that the new order is not sufficiently transformative may be borne out in the way constitutional actors reconcile horizontal application with continuities from the prior order. Although key framers were clear, and the constitutional text explicit, in providing for horizontality, certain factors, both persisting from the prior system and emerging in the new, seem to countervail against this practice in particular instances. Indeed, differently situated constitutional actors have related differently to horizontality. As institutions and actors bring their various interests to the constitutional political table, it is to be expected, even in what is arguably an optimal context, that different actors may be more or less disposed to develop horizontal application. This chapter thus follows the same dynamic as previous chapters in finding more compelling republican interpretations in certain moments and spaces than others. While we ascertain their full weight in the light of South African history, law, and politics, these considerations offer important insights into horizontality more generally as well.

This chapter proceeds by uncovering republican interpretations of horizontality in various South African constitutional debates, paying particular attention to founding debates and the early landmark case, Du Plessis v. De Klerk, before turning to more recent developments. This chapter also addresses those factors that, in South Africa, have seemed to countervail against horizontal application. They include persistent priorities of the formerly dominant National Party, oppositional institutional interests not unlike the early debates between private and public lawyers in Germany, and a highly formalist legal culture. As in foregoing chapters, attention to these factors is not intended to set up a developmental argument, but to set the full contextual scene on which to analyze constitutional discourses surrounding horizontality and bring the republican lens to bear. Insofar as such factors are inseparable from, and even constitutive of, constitutional politics, so too will they bear on a republican interpretation of this constitutional practice.

Foundations for a Republican Interpretation: Ubuntu and Democracy

While those involved in the constitutional deliberations would not necessarily have described the constitutional project in terms of civic republicanism, communalistic elements have long figured into South African political culture. Specifically, the concept of ubuntu dates back to precolonial times, encompassing a rootedness in community and inescapable connectedness to neighbor. Praeg describes it as “a political economy of obligation”Footnote ⁹ and a “logic of interdependence.”Footnote ¹⁰ Markedly different from political narratives focusing on the individual, ubuntu speaks to an interconnectedness and capacity for friendship among people as human beings. The Constitutional Court has made some use of the concept in its judgments, with Justice Mokgoro describing it as “an idea based on deep respect for the humanity of another”Footnote ¹¹ and “part of our rainbow heritage.”Footnote ¹²

Some object that ubuntu is hollowed out by attempts to apply it to the liberal structures of South African constitutionalism.Footnote ¹³ The Constitution simply does not admit space for ubuntu’s full-blown communalism, the argument goes, nor can ubuntu be employed to support such typically liberal structures as rights, courts, and the like. The very fact that courts are entrusted with enforcing the Constitution poses an obstacle in that they tend to understand conflicts as clashes of rights in contrast with the community-mindedness that ubuntu espouses.Footnote ¹⁴ Others have been more optimistic with respect to ubuntu’s contributions to South African constitutionalism.Footnote ¹⁵ We see such optimism in Justice Sachs’s judgment in Port Elizabeth Municipality v. Various Occupiers,Footnote ¹⁶ a case in which a white landowner attempted to evict extremely poor black families who had lived on the land for years. Drawing on ubuntu, Justice Sachs required the parties to “engage with each other in a proactive and honest endeavor to find mutually acceptable solutions” before resorting to such adversarial measures as eviction. He explained:

The Court would rely on similar reasoning in such later cases as President of South Africa v. Modderklip,Footnote ¹⁸ discussed later, actually shying away from the language of rights in favor of a call for neighborliness.

For some, the concept of ubuntu has thus served as a counternarrative or supplement, aligning South African constitutionalism with the maxim that “[a] person is a person through other persons.”Footnote ¹⁹ Put differently, ubuntu potentially brings something new to the constitutional table in the very act of bringing something quite old, not unlike this book’s republican interpretation of horizontality. What Chapter 2 argues to be republican features of horizontal application bring to constitutionalism an understanding of the polity conceived as a whole, as well as an understanding that citizens have duties to one another. In a similar way, ubuntu conjures a conception of constitutionalism that transcends the individual, evinced in Justice Sachs’s judgment in Port Elizabeth Municipality. He explains that “those seeking eviction should not rely on “concepts of faceless and anonymous squatters automatically to be expelled as obnoxious social nuisances,”Footnote ²⁰ and that “those who find themselves compelled by poverty and homelessness to live in shacks on the land of others, should be discouraged from regarding themselves as helpless victims, lacking the possibilities of personal moral agency.”Footnote ²¹ Thus, Justice Sachs concludes, “Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arms-length combat by intransigent opponents.”Footnote ²²

Ubuntu arguably offers a philosophic tradition, already existing in South Africa, to buttress a republican interpretation of horizontal application. While not self-consciously or explicitly connected with republicanism, ubuntu tracks certain republican ideals in its calls for mutual respect among citizens.Footnote ²³ And indeed, the Court invokes ubuntu in crucial horizontality cases, including City of Johannesburg v. Blue Moonlight PropertiesFootnote ²⁴ and AB and Another v. Pridwin Preparatory School,Footnote ²⁵ discussed later. The point of comparing ubuntu and republican ideas is not to create a false equivalence between them, but rather to sketch the full contextual space that could admit a republican reading of horizontal application. Indeed, ubuntu is a primary reason there is more such space for a republican reading of horizontality in South Africa than in nearly any other context in the world. As Chapter 2 explains, horizontal application seems to call for a new theoretical reference point that this book sums up in the concept of the common good – the sheer idea that there is a good of the community of which to speak, one that extends beyond individual rights to encompass some consideration of shared ends. However, what ultimately is contained in, or what substance is meant by, the common good is at least partly contingent on the politics of the place.Footnote ²⁶ Likewise, ubuntu emphatically is not about individual rights but rests on the essential nature, even the priority, of community. Therefore, in addition to tracking a similar orientation toward the communal, the concept of ubuntu is noteworthy as it potentially offers some substantive content, even if at a high level of abstraction, to understand what exactly the common good might involve in this context.Footnote ²⁷

In addition to this age-old principle of ubuntu, early proposals of the ANC also point toward something of a communal approach to treating South Africa’s pathologies. Democracy would become the ANC’s constant refrain, as the party put its faith in the change it hoped would follow from enfranchising the population’s actual majority. Moreover, the cooperation even of private actors within the public project was key. In a certain sense, bringing public and private standards under a more common regulative umbrella could serve to democratize law and politics, rather than exempting one corner of law to follow a different, perhaps less demanding standard.Footnote ²⁸ In this democratized understanding, no space of society exists beyond the fundamental law to which “the people” have ascribed their consent, provided that the people are in fact consenting to and creating that law.

Giving voice to these commitments, among others, the ANC Constitutional Committee drafted its 1991 Bill of Rights for a New South Africa even prior to the negotiations and convening of the Constitutional Assembly.Footnote ²⁹ While this document would not be adopted wholesale into the Final Constitution, it offers a clear articulation of the solutions key actors envisioned would solve South Africa’s problems. Relevant to the present project, Article 14(1) states, “In its activities and functioning, the State shall observe the principles of non-racialism and non-sexism, and encourage the same in all public and private bodies.” In a similar vein, Article 14(3) continues, “The State and all public and private bodies shall be under a duty to prevent any form of incitement to racial, religious or linguistic hostility and to dismantle all structures and do away with all practices that compulsorily divide the population on grounds of race, color, language, or creed.” And finally, Article 16(3) on Enforcement states, “The terms of the Bill of Rights shall be binding upon the State and organs of government at all levels, and where appropriate, on all social institutions and persons.” Such early proposals clearly imply a republicanesque diagnosis of the situation and republican prescription for what a new, democratic South Africa would require. References to how the state should direct both public and private action, as well as to the duties of private bodies to dismantle divisive social structures, contemplate something like horizontal application. Moreover, such formulations seem to conceive of these duties not as separate from or supplementary to the public project but as constitutive of a vision or good that could only be achieved in common.

The proposed Bill of Rights continues with Article 15 establishing the possibility that legislation might limit the exercise of rights, and beginning to outline the conditions under which such limitations could occur for the sake of maintaining “an open and democratic society.”Footnote ³⁰ As Chapter 2 suggested, limitation clauses are arguably a precondition for horizontal application, insofar as they acknowledge that individual rights might give way to broader ends, whether to the rights of others or to certain communal goods. Such limitations may not amount to full-blown duties, necessarily, but they do entail some concession of limits to exercising one’s own rights. Following the Canadian Charter as an example, the South African drafters, therefore, took the crucial step to preserve limitations analysis in both the 1993 Interim Constitution (Chapter 3(33)) and the Final Constitution (Chapter 2(36)).Footnote ³¹ By the Interim Constitution’s adoption, the early articulations of horizontality in the ANC’s 1991 Bill of Rights, mentioned above, had been dropped, with no mention of private bodies in Chapter 3(7) on the “Application” of rights. While the ANC’s vision offers robust ground for a republican interpretation in early proposals for horizontal application, the omission of horizontal application from the 1993 text likewise reveals the presence of other forces in the constitutional story running up against this republican interpretation.

The Interim Constitution: A First Step “to Make the Best Constitution in the World”

The process by which South Africa adopted its new constitution is well known.Footnote ³² The National Party (what historically had been the white Afrikaner ethnic nationalist party) and the ANC (founded for the purpose of ending Apartheid) agreed to pursue a two-stage constitution-making process, beginning with an Interim Constitution negotiated between the parties that would set the terms for a Final Constitution. Ultimately the Constitutional Court would prescribe nine changes to the draft text before certifying the country’s new vision in the Final Constitution. The choice to conduct a multistage process was a conscious attempt to navigate an issue ubiquitous in constitution-making but especially salient in the South African context, namely, the challenge of balancing majoritarian rule with the protection of minority rights.Footnote ³³ In South Africa, this meant facilitating the transition to democracy by abolishing racial elections and granting universal suffrage, a move likely to cast white populations in the role of political minority in the new government. The Interim Constitution was thus an effort to begin the constitution-making process by setting initial terms on which all the major parties could agree.Footnote ³⁴

As the ANC came to the negotiating table with such aspirations as they had articulated in their 1991 Bill of Rights, so too did the National Party come with goals of its own, namely, to secure a space for itself in public and private life as it assumed minority status.Footnote ³⁵ On this basis, National Party representatives initially advocated for group rights in the new constitution, specifically for the recognition of the Afrikaner population as a group with such rights as to education in its own language.Footnote ³⁶ The concept of group rights was met with great suspicion, however, from both domestic and international voices. With the possibility of group rights roundly rejected, the National Party ultimately changed tack to pursue individual rights instead, especially strong property rights,Footnote ³⁷ as well as a high degree of autonomy in private spaces and at local levels. Indeed, local governments were not even discussed at this stage of the deliberations and would remain racialized through the 1990s.Footnote ³⁸

This early stage of constitution-making was an exercise in pragmatism and compromise, arguably to a degree exceeding many other nations’ processes. The goal at this interim stage was simply to commence a conversation the parties would be willing to continue into subsequent years. As a practical document, the Interim Constitution rolled back many facets of the ANC’s early proposals. The proposed practice of horizontal application, for example, was dropped. Relatedly, the text shows some shift in emphasis toward such rights as to property, departing somewhat from the vision of the 1991 Bill of Rights. In the terms of this book, that which might have supported republican understandings – say, a vision of ends related to elevating the socioeconomic status of black populations – was effectively dropped at this stage to accommodate other rights and interests.Footnote ³⁹ Recounting this dynamic in his memoir, Justice Sachs explains how “[t]he dialectic of legal development was such … that concepts intended to assuage the anxieties of the whites inevitably aroused the concerns of the blacks.”Footnote ⁴⁰

Although direct horizontal application was omitted from the text of the Interim Constitution, the subject did arise in the deliberations. Mindful of Apartheid’s deep-seated legacy in the social fabric, this was a natural question for ANC representatives to consider as they aimed beyond formal rights protections at thoroughgoing transformation.Footnote ⁴¹ Insofar as private actors would maintain great power, framing rights as only the state’s responsibility, rather than shared by citizens or other private actors, might have impractically constrained the larger project.Footnote ⁴² Interestingly, however, the prospect of applying rights horizontally was debated both among and within parties involved in the deliberations of the Interim Constitution.Footnote ⁴³ Despite some consensus that the new constitution was bound to bring sweeping change, less clear was the role of horizontal application in this project. Members across the parties feared the real possibility that a clumsy formulation of horizontal application would have far-reaching and unintended consequences.

Noting the global trend toward horizontality, the Technical Committee on Fundamental Rights included horizontal application in the original proposal for the Interim Constitution.Footnote ⁴⁴ Unsurprisingly, representatives of the National Party and the libertarian Inkatha Freedom Party were wary of this provision, pushing instead for a vertical model to obligate only state actors and not change so drastically the status quo that privileged whites.Footnote ⁴⁵ Moreover, the Communist Party also expressed hesitation about horizontal application, but their criticism stemmed from fear of its bidirectionality, or the possibility that corporations could claim rights against private individuals, too.Footnote ⁴⁶ In such an understanding, horizontal application could be abused by “economically powerful institutions in areas which do not properly fall within the ambit of an instrument for human rights protection.”Footnote ⁴⁷

Despite early articulations of horizontal application in the ANC’s 1991 Bill of Rights and the Technical Committee’s proposal, a gap emerged even among those who favored significant change under the new constitutional dispensation. For example, in Spitz’s telling, Halton Cheadle and Albie Sachs disagreed on this question, Sachs counting himself among those who thought horizontal application necessary to prevent the privatization of Apartheid.Footnote ⁴⁸ Spitz also attributes this divide to various party members’ consultation with such law professors as Laurence Tribe. Apparently, Tribe cautioned the committee on rights against horizontal application, for the common reason that legislatures, rather than courts, are better suited to regulating private relations.Footnote ⁴⁹ Likewise, Chief Justice Michael Corbett commented on a draft expressing the judiciary’s opposition for similar reasons, asserting that horizontal application would bring judges into policy debates that ought to happen in politically accountable branches of government. On the other hand, others’ worries cut in the other direction, that cementing horizontal application of particular rights in the Interim Constitution would prevent courts from employing broader interpretive powers to apply additional rights horizontally in the future.Footnote ⁵⁰

Key drafter Halton Cheadle initially worried that horizontal application would empower “judges, particularly those appointed by the Nationalist régime to intervene in areas in which a democratically elected Parliament should be legislating.”Footnote ⁵¹ The fact that the ANC presumably would become the majority party in the new parliament sheds further light on the hesitance of party affiliates to hand over additional power to the courts. As a practitioner of labor law, Cheadle also worried that horizontal application would bring too much within the purview of the Constitutional Court to the detriment of those issues and institutions dedicated more specifically to fair labor practices. Indeed, his concern was not unlike that of some German practitioners of labor law in the years leading up to Lüth. Spitz suggests that such worries over horizontal application were symptomatic of the presence and different preoccupations of academics and practitioners in the Assembly.Footnote ⁵² The academics were generally convinced that some provision of horizontal application was essential to realizing constitutional values writ large. In contrast, the practitioners initially were more inclined to preserve traditional distinctions in law, often for the simple reason that they were not clear on how this novel constitutional mechanism would operate in practice, but could see the potential repercussions of a careless execution.

Some of these apprehensions of what horizontal application might amount to seem to conjure up possible interpretations of horizontal application, beyond a republican one. The concerns of Professor Tribe, Chief Justice Corbett, and Halton Cheadle, for example, give voice in different ways to the objection, taken up in Chapter 2, that horizontal application’s reliance on courts may be antirepublican. Such institutional questions may be tied to substantive matters, moreover – for example, whether the courts could be trusted to place due weight on such issues as fair labor, or instead would give priority to more traditional rights. A picture begins to emerge of how horizontal application could fit interpretations that are not clearly republican by keeping rights and the individual at the center of the inquiry, rather than initiating a kind of reordering to prioritize certain ends and community.Footnote ⁵³ Put differently, the fact that private actors may come to have duties to one another may not necessarily entail a common good that has assumed priority, but may in fact be designed to preserve the individual and individual rights above all.

In this way, these debates over the Interim Constitution reveal the question of whether horizontal application would ultimately be employed to further the ANC’s early articulations of a new constitutional vision, or simply serve as another means by which private interests were furthered – whether the old interests connected with the Apartheid regime or a new set of private interests altogether. Indeed, this is not unlike the criticisms discussed earlier about the way ubuntu has come to be coopted by a rights-centric narrative. It is worth noting, however, that in these debates, neither the National Party nor corporate interests ever pushed for horizontal application. And indeed, those corners of the ANC and its allies who voiced concerns were presumably thinking through more extreme and marginal scenarios of how this practice could be employed. Ultimately, the ANC and its allies came to support horizontal application, judging that the capacity of this practice to achieve the ends of the ANC’s constitutional vision outweighed any potential threats.

Despite the balance ultimately weighing in favor of horizontality, the rights committee led by CheadleFootnote ⁵⁴ would adopt a vertical model for the Interim Constitution, omitting reference to direct horizontal application while still admitting something like indirect horizontality.Footnote ⁵⁵ Section 7(1) in the chapter on rights, for example, does not list the judiciary among the state organs bound by constitutional rights. Du Plessis and Corder suggest that this provision should, nevertheless, be read as including the judiciary if it is to cohere with other parts of the Constitution.Footnote ⁵⁶ Specifically, they mention Section 4(2)’s statement of the Constitution’s supremacy, binding “all organs of state at all levels of government.”Footnote ⁵⁷ The Interim Constitution did not embrace a robust practice of horizontal application, but also did not preclude it altogether. Presumably, as was its stated goal, it aimed at a kind of middle ground in light of the need for consensus both within and between parties. The Interim Constitution remained uncommitted to direct horizontal application, but also took steps to avoid a strict state action doctrine of the American stripe.

Amid the general caution surrounding horizontal application at this early stage, the committee also agreed to what became known as “seepage provisions” in Section 35(3). This section states: “In the interpretation of any law and the application and development of the common law and customary law, a court shall have regard to the spirit, purport and objects of this Chapter.”Footnote ⁵⁸ This formulation would not be unusual as justification for the horizontal application of rights in other contexts. Indeed, it resembles the reasoning of the German Federal Constitutional Court in Lüth, that the Basic Law’s objective order of values necessarily informed the interpretation of all other areas of law. To this extent, the Interim Constitution left an opening for some form of horizontal application and even laid groundwork for constitutional rights to trump customary law.Footnote ⁵⁹ But while it required judges to take constitutional principles into consideration, it did not provide any mechanism that would require judges to take the affirmative step of reassessing private law.Footnote ⁶⁰

More than a mere placeholder, the Interim Constitution came with the promise that the National Party’s voice would maintain a significant level of volume even as the ANC grew louder. Following the adoption of the Interim Constitution in November 1993 was the first nonracial election in April 1994, allowing the ANC to assume its status as, in fact, representing the majority of South Africans after some 350 years of disenfranchisement. Even in later stages of the process, however, the Constitutional Assembly offered protection to the National Party, such as through high thresholds for adopting certain provisions into the Final Constitution, including the Bill of Rights, which required a noteworthy 75 percent affirmative vote.Footnote ⁶¹

The Court at a Crossroads: Du Plessis v. De Klerk

In the years the Interim Constitution was effective, from 1993 to 1997, the question of horizontal application remained a live one.Footnote ⁶² Those working on Theme Committee Four on Fundamental Rights in the Constitutional Assembly and others in the ANC parliament began to coalesce around the earlier consensus reflected in the 1991 Bill of Rights regarding the need for something like horizontal application. Indeed, there was a sense of urgency that they had to get this issue right in the Final Constitution. The drafters also viewed the horizontal application of rights against private actors as a way to signal to the larger populace that the Constitution would meet their material needs.Footnote ⁶³ National Party members still preferred a vertical model, but chose instead to direct their energies toward protecting property rights, not least because their status had changed from the dominant to opposition party by this later stage.Footnote ⁶⁴ The constitutional drafters thus seemed to reach some settlement on the question of horizontality, reintroducing language that approximated provisions from the 1991 Bill of Rights. The questions that remained about horizontal application were more practical in nature, about specific remedies and finding a formulation sufficiently precise so as not to give courts a carte blanche.

In the meantime, the newly established Constitutional Court contended with the ambiguous language of the Interim Constitution, when it decided Du Plessis v. De Klerk. This judgment has received much attention since it was decided in 1996, largely because the majority assumed something like the conventional understandings of public and private spheres, and public and private law, in its interpretation of the Interim Constitution. In short, the Court opted for a more moderated indirect horizontal effect of the German variety rather than the direct horizontal effect for which many had been arguing. Indeed, this case and its accompanying judicial rationale made ANC drafters uneasy, contributing to their urgency to follow through with stronger, more explicit provision for horizontal application in the Final Constitution.Footnote ⁶⁵

In Du Plessis, a newspaper reported that South African citizens had been transporting weapons to rebel forces in Angola via covert flights. The newspaper suggested that such private air operators as Gert De Klerk were intentionally fueling the Angolan civil war in order to make a profit. De Klerk sued the newspaper for defamation, arguing that these articles had damaged both his reputation and his business.Footnote ⁶⁶ The decision itself hinged on whether the Interim Constitution could be applied retrospectively insofar as the newspaper (the plaintiffs) sought to rely on Section 15, protecting the freedom of speech and expression, including “freedom of the press and other media.” The fact that the Interim Constitution was not adopted until after the articles were published and damages were incurred posed some difficulty to their argument. Implicit in this question of retrospectivity, moreover, was the further question of whether an article of the Constitution could even be brought to bear on a private relationship in the way the newspaper argued. The case made its way to the Supreme Court of Appeal, which decided against the newspaper. Specifically, the Court decided that the Interim Constitution could not apply retrospectively and that the Bill of Rights of the Interim Constitution only had vertical effect.Footnote ⁶⁷ In plain terms, only the state could be said to violate rights such as to freedom of expression; private actors and spaces existed beyond this standard.

The Supreme Court of Appeal was considered to be the final court of appeal in all areas of ordinary law. The question of both retrospectivity and horizontality in the case at hand seemed to implicate constitutional questions, however. Crucial to the outcome of this case was the question of how the common law related to the Constitution: Were such aspects of the common law, such as the rule governing defamation, ultimately subject to the Article 15 commitment to free expression? With such questions straddling the divide between ordinary and constitutional law, the case went to the Constitutional Court. The Constitutional Court, in turn, agreed with the Supreme Court of Appeal that the Interim Constitution could not apply retrospectively. While this judgment alone would have been sufficient to determine the case’s outcome, the Court took the additional step of deciding the question of horizontal application as well.Footnote ⁶⁸ Justice Kentridge cited the Interim Constitution’s aforementioned Section 7 to argue that the Constitution included no basis for direct horizontal effect; indeed, Section 7 only obligated the executive and legislature to uphold the Bill of Rights. The Court thus reasoned that the text of the Interim Constitution provided a foundation for a kind of indirect horizontal effect that closely resembled the German practice of Drittwirkung. Indeed, Kentridge suggested that horizontal effect in the Interim Constitution resembled the German model more than any other approach to horizontal effect in a national constitution. In this understanding, the Bill of Rights of the Interim Constitution obligated private relationships only insofar as statutes attempted to regulate them.

South Africa was different from Germany, however, in that it maintained a system of common law. This common law, the Court concluded, was not subject to the Constitution in the same way, largely tracking the Canadian take on this question.Footnote ⁶⁹ Of course, Section 35(3) of the Interim Constitution required that a court should have regard for “the spirit, purport and objects” of the Bill of Rights in interpreting any law, and the provision explicitly included the common law in this.Footnote ⁷⁰ Nevertheless, Justice Kentridge suggested that the Constitutional Court was not up to this task, explaining that it simply did not have the capacity to balance matters of common law in the way that would be required in applying horizontal effect. In particular, he worried that in deeming some rule of common law incompatible with the Constitution, the Constitutional Court would have to make law to fill the resulting gap.Footnote ⁷¹ In addition to actions of parliament in the realm of statutory law, the ordinary courts and particularly the Supreme Court of Appeal were better equipped to apply horizontal application in their “routine common law interpretive work.”Footnote ⁷² Kentridge’s argument is premised on a specific understanding of law and the work common law does to balance private relationships. In Kentridge’s telling, these new constitutional rights were likely to resist balancing in the particular ways that common law decision-making prescribed.Footnote ⁷³ In this way, the Constitutional Court’s initial formulation of horizontal application was one that preserved traditional boundaries of law, largely intended to isolate private relationships from constitutional obligations directed to the state.Footnote ⁷⁴

Early critics of the Du Plessis decision, Stuart Woolman and Dennis Davis, suggest that the Interim Constitution pointed just as easily, if not more so, to the opposite conclusion. They argue that the Interim Constitution supplies good evidence that the drafters did mean to govern all aspects of law and life, including the common law, as evinced by Section 35(3).Footnote ⁷⁵ The very fact of Justice Albie Sachs’s concurring opinion and, especially, Justice Kriegler’s dissenting opinion in Du Plessis illustrate the plausibility of such alternative reads of the Interim Constitution. We see this tension in Justice Sachs’s opinion, in particular. On the one hand, as a core member of the ANC in the decades prior, he recognizes the capaciousness of the South African constitutional project. He states:

In this way, Justice Sachs expressed his understanding that the purpose of the South African Constitution differed from the conventional model that prioritized negative rights and sought only to protect against government interference. Indeed, he cites “the circumstances in which [the] Constitution came into being,” rooting its normative commitments in a larger understanding of the history of the South African polity. But this understanding was not enough ultimately for Justice Sachs to depart from the majority, as he saw this consideration of constitutional purpose as “not the issue” of the case at hand.Footnote ⁷⁷ He explains his more immediate concern that the enforcement of constitutional commitments appropriately depends on the actions of parliament and the Supreme Court of Appeal.Footnote ⁷⁸ Moreover, following Kentridge, he questions whether the Constitutional Court is even equipped to undertake the sort of “social, political, and economic questions” that accompany horizontal application when individuals’ rights and duties are weighed against each other.Footnote ⁷⁹ In this way, Sachs straddles the line between the concerns to which Kentridge gives voice in the majority opinion and acknowledgment of certain normative commitments that would seem to accommodate a larger role for the Constitutional Court.

That “the most radical member of the court”Footnote ⁸⁰ could not bring himself to endorse horizontal effect in this instance is revelatory of the sort of crossroad the Court faced in Du Plessis v. De Klerk, still operating under the Interim Constitution and well aware of the disconnect between aspiration and the ability to implement those aspirations in local settings. The tension with which Sachs wrestled – of a constitutional vision that clearly implicated the polity as a whole but did not decidedly abandon certain forms of liberal thinkingFootnote ⁸¹ – was not as salient for dissenting Justice Kriegler. After “castigating the majority,”Footnote ⁸² Kriegler states:

Kriegler had little patience for the sorts of distinctions that Kentridge and Sachs maintained in their own opinions. Indeed, Section 35(3) and others that Kriegler cites suggest that the “spirit, purport, and objects” of the Constitution govern all law and life in the polity, regardless of the particular institution or court that happens to be acting. Even beyond such specific provisions, however, Kriegler insists on the need to consider the South African constitutional vision as a whole. Due appreciation for the power relationships embedded in South African society and the Constitution’s frontal assault on these public and private power structures do not permit the queasiness that Kentridge and others display with respect to the intervention horizontal effect would entail. Kriegler brings his rejection of liberal presuppositions into sharp relief when he accuses the majority of “preying on the fears of privileged whites, cosseted in the past by laissez faire capitalism thriving in an environment where the black underclass had limited opportunity to share in the bounty.”Footnote ⁸⁴ Laissez-faire priors may work for other polities, but it is not the basis of the new South African polity, Kriegler argues, and in fact represents much of what the Constitution is combating.

It is not difficult to see how the questions of Du Plessis could yield such an array of answers. For example, while the Interim Constitution does not explicitly provide for horizontality, certain provisions like the “seepage provisions” in Section 35(3) could be interpreted as a basis for indirect horizontal application. Kentridge found some grounding for traditional liberal commitments in the Interim Constitution, while Kriegler’s more purposive take brought him to a very different conclusion. And indeed, these disparate readings pointed toward a real choice – Robertson describes this as a choice between “thin” and “thick” constitutionalism,Footnote ⁸⁵ while Woolman and Davis understand it as the difference between classical and “creole” liberalism.Footnote ⁸⁶

An additional, and important, reason for the impasse in Du Plessis was the fact that the Interim Constitution maintained separate jurisdictions of the Constitutional Court and the Supreme Court of Appeal. Insofar as the Supreme Court had been the highest court until this time of transition, there was good reason to keep it as supreme in its jurisdiction even after the Constitutional Court was established. Indeed, the continued separation at this stage was indicative of a general distrust of the extent of the old Supreme Court’s loyalty to the new constitution, as well as an initial concession to appease those who worried that the Supreme Court no longer would enjoy primacy in its jurisdiction.Footnote ⁸⁷ This separation of courts preserved in the Interim Constitution provoked the questions we find in Du Plessis concerning the relationship between ordinary law, common law, and constitutional law.

This separation of courts is not all that different from that which informed the German Federal Constitutional Court’s decision in Lüth. Underlying Lüth was the similar question of how the Federal Labor Court, as well as other private law courts, related to the Constitutional Court. In Lüth, the Constitutional Court asserted itself as the primary and final interpreter of the Constitution; however, it did not prevent other institutions from also engaging in constitutional interpretation. Neither did the Constitutional Court presume to have final interpretive authority with respect to the Civil Code. Indeed, its decision to focus primarily on the general clauses, as explained earlier, shows a kind of self-imposed limit and even deference to other apex courts. Michelman sees all of this as evidence that Germany preserved separate systems of law and courts, even as Lüth required that the principles of the Basic Law influence the private law. In the South African context, on the other hand, the separation between the jurisdiction of the Supreme Court of Appeal and that of the Constitutional Court, Michelman thinks, “was always headed for instability.”Footnote ⁸⁸ He goes so far as to describe such a system as a “design error” of the Interim Constitution in need of correction,Footnote ⁸⁹ given the vast transformation the ANC and other constitutional actors sought. And indeed, the Final Constitution of 1996 brought significant change, demonstrating that a choice had eventually been made. The Constitutional Court was confirmed as the final arbiter in all areas of law, including matters of common law, and direct horizontal effect of the Bill of Rights became a constitutional requirement. “Under pressure from the idea of a socially transformative, constitutional bill of rights,” the Final Constitution united the South African systems of law and courts under a common constitutional standard.Footnote ⁹⁰ With the adoption of the Final Constitution, the institutional structures were more clearly harmonized with the political needs entailed by these new substantive commitments.

South Africa as Heir and Foil to German Constitutionalism

Before discussing the specific changes of the Final Constitution and subsequent caselaw on horizontal effect, it is worth fleshing out comparisons between South Africa and Germany, especially as some justices writing in Du Plessis explicitly mention the German case.Footnote ⁹¹ In particular, Justice Laurie Ackermann’s opinion in Du Plessis compares the South African situation with postwar Germany, finding in these apparent similarities justification to develop an understanding of horizontal application that was also similar. Ackermann maintained that the German Basic Law “was no less powerful a response to totalitarianism, the degradation of human dignity and the denial of freedom and equality than our Constitution.”Footnote ⁹² Indeed, he elaborates that a similar stage for the development of horizontal application was set by each country’s troubled history. If indirect (in contrast with direct) horizontal effect was good enough for Germany, Ackermann suggests it ought to be good enough for South Africa, too.Footnote ⁹³

Woolman and Davis, however, insist on important differences between Germany and South Africa that, in their view, Ackermann and others paper over. While the German and South African Constitutions were both responses to serious rights abuses and totalitarian regimes, the states of affairs in each postconflict situation were vastly different. After the Second World War, Germany was a “modern, industrialized and relatively egalitarian society. It was into these less than dire circumstances that the [Basic Law] was born.”Footnote ⁹⁴ On the other hand, Woolman and Davis wrote:

This explanation gives some historical context for Germany’s ability to cling continually to old legal structures, even importing directly many Weimar legal structures. Whereas Du Plessis v. De Klerk initially seemed to put South Africa on that same track of preserving some insulation of private relations from constitutional standards, such expressions as Kriegler’s condemnation of laissez-faire structures pick up on a progressive shift. And indeed, taking a cue from the ambivalence in Du Plessis, the drafters of the Final Constitution made explicit the sheer scope of transformation intended, expanding the Constitutional Court’s jurisdiction and clarifying a doctrine of direct horizontal effect. This way, the drafters enabled future judgments to pursue the transformative constitutional project without the need for any “jurisprudential gymnastics.” The text and institutions of the Final Constitution were intentionally aligned with transformation and, by extension, with a stronger assertion of direct horizontal application.

The decision of whether and how to apply horizontal application came through different fora in Germany and South Africa – through the Constitutional Court and the Constitutional Assembly, respectively. However, in both cases, the express aim was to respond to histories of violence and to influence the broader social order according to constitutional values. To this extent, Ackermann’s comparison in Du Plessis is accurate. The parity with which constitutional values applied across public and private spaces manifested differently in each context, however. As explained with respect to Germany, its long tradition of civil law and system of specialized courts, as well as the persistence of the principle of Privatautonomie, tracks the way in which horizontal application developed after Lüth. Indeed, most cases developed in the context of such classical negative rights as freedom of speech and assembly, with fewer occurring in the realm of equality and antidiscrimination until much later.Footnote ⁹⁶ And when courts and even legislatures did move to bring certain equality rights into private spaces, private interests often resisted. The more traditional rights that make up the content of the German Basic Law as well as certain structural and doctrinal features, therefore, map onto a practice of horizontal application that is in some ways more limited. Likewise, while a republican interpretation still emerges in the German turn toward community, this too appears bounded in certain ways, as discussed in Chapter 5.

Comparing German Drittwirkung with horizontal application in South Africa bears out Woolman and Davis in their desire to lend nuance to Ackermann’s account in Du Plessis. In particular, the advance of horizontal application from the Interim Constitution to the settlement of the Final Constitution, to say nothing of the tension internal to Du Plessis, points to a real disconnect between the priors of some framers and judges and the ANC’s vision articulated in such early documents as the 1991 Bill of Rights and ultimately cemented in the Final Constitution. This was the quandary Du Plessis hit upon and which a comparison of Germany and South Africa brings into sharper relief. The formulation of horizontal effect in the Interim Constitution was comparable to that of the German Federal Constitutional Court in Lüth, despite the fact that the countries actually faced very different problems.

To be sure, classical liberal rights and freedoms are represented in South African constitutionalism. Indeed, the Constitution founds the polity on “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”Footnote ⁹⁷ But these commitments carry unique status and meaning in South Africa. For example, both freedom and equality encompass more than their formal meanings, in that they involve certain material prerequisites as well.Footnote ⁹⁸ Moreover, rather than shy away from certain instances of equality in the context of horizontal effect as in the German case, the South African Constitution actually singles out equality by name as requiring horizontal effect. Chapter 2, Section 9(4) guaranteeing the right to equality, states:

Of course, merely providing that the right to equality or right against discrimination has horizontal effect does not entail that a person’s right to equality will always prevail against the countervailing right in question. (Section 9(5), for example, suggests that there are instances in which discrimination may be fair.) Nevertheless, the very fact that the South African Constitution so prioritizes equality to specify its provision for horizontal application diverges from the German treatment of the same question.

New Clarity in the Final Constitution

The 1996 Constitution established the Constitutional Court as “the highest court in the republic,” with authority to decide constitutional matters as well as any other matter it decides is in its jurisdiction.Footnote ¹⁰⁰ It was within this new institutional context that the framers entrenched direct horizontal effect as a legal-constitutional practice.Footnote ¹⁰¹ In contrast with the ambiguity of the Interim Constitution, the constitutional drafters established horizontal application with uncommon clarity, taking pains to avoid the sort of confusion evident in Du Plessis v. De Klerk.

Several provisions across different sections of the final text collectively establish horizontal effect. In contrast to the Interim Constitution that obligated only the actions of the legislature and the executive to the Bill of Rights, Chapter 2, Section 8(1) of the 1996 Constitution provides that the Bill of Rights binds the judiciary as well. In addition, several entirely new provisions concerning horizontal effect were added. Among them were Section 9(4) on the right to equality, described earlier, as well as Section 8(2):

In stating that the Bill of Rights binds “a natural or a juristic person,” Section 8(2) establishes that rights apply horizontally to obligate both private individuals (natural persons) and other private entities such as firms and corporations (juristic persons). When a panel of experts at the Constitutional Assembly considered this terminology, they found strong reason to bind both natural and juristic persons in view of the goal “not just to root out discrimination by the state but to attack it in its most pervasive form – discrimination as between citizens.”Footnote ¹⁰² This section goes on to state that the nature of the right and the nature of the duty imposed by the right may influence the outcomes of particular cases when balancing one right against another.Footnote ¹⁰³ Therefore, although horizontal effect establishes parity in applying South African constitutional values across spheres, Section 8(2) creates some space for variation in the way rights obligations apply to private actors as opposed to state actors.Footnote ¹⁰⁴

Also in Section 8, the Constitution explains specifically how a court will apply a right horizontally, stating that a court must apply or develop the common law in applying horizontal effect. The provision reads:

This section seems to take Du Plessis v. De Klerk head on, giving all courts, including the Constitutional Court, authority to develop the common law in order to hold private actors accountable for the Bill of Rights. Moreover, as was the case in Section 8 (1), the Constitution acknowledges that some rights will necessarily be limited in the process of balancing. Taken together, these several additions to the Final Constitution mark a clear departure from foregoing renderings of horizontal effect. Indeed, Halton Cheadle had long moved on from any initial concerns to argue the necessity of horizontal effect, drafting Section 8 to provide just the kind of constitutional cause of action the Interim Constitution lacked. How consistently jurists would treat this provision as a break from the Interim Constitution was another matter.

In terms of institutional structures, doctrinal specifics, and constitutional content, the South African Final Constitution cemented a clear shift away from the German model. Insofar as both constitutions implemented some version of horizontal application, constitutional standards came to govern public and private spaces alike. In the terms of this book, the turn toward horizontal application can be interpreted as a turn toward certain communal values over sheer individual rights in both places. Nevertheless, from the outset, the particularities of the South African case seemed to invite constitutional actors to extend horizontal application further into private spaces than in the case of Germany. Moreover, subsequent jurisprudence and legislation contributed to a different scope for the parity and duties resulting from the initial communal turn, as constitutional actors in each place incrementally carved up the private sphere in different ways. Thus, while a republican interpretation applies in both experiences, constitutional actors in South Africa now operate in a constitutional context where that interpretation may ultimately ring with more truth at more levels of society.

What remains of this chapter illustrates a republican interpretation of subsequent arguments surrounding horizontal application in South African constitutionalism. Emboldened all the more by the Court’s ambivalence in Du Plessis, the ANC drafters and those allying with the ANC followed through in their intent to transcend the Interim Constitution by providing an explicit basis for horizontality in the Final Constitution. Nevertheless, much about how horizontal application would develop (or not develop) was left to the discretion of judges and other constitutional actors. As explained earlier, South Africa’s experience displays a potential scope for horizontal application, and thus a depth to the republican interpretation, that exceeds that of the German context. Simply put, the commitments of the political community can and have been understood as encompassing more in South Africa and, on this basis, have allowed constitutional actors to make greater inroads into private spaces – including in such areas as housing, education, and even testamentary decisions. At the same time, constitutional actors in South Africa have not always employed this practice in a maximal way. Judges anywhere will always have an interest in drawing lines and developing limiting principles. This seems all the more likely in the case of horizontal application, which marks a departure from conventional understandings and implicates private actors in new ways, intensifying such well-trodden apprehensions in judicial politics as enforcement and funding of courts’ directives.Footnote ¹⁰⁵ Other countervailing factors, such as a pervading formalism in the legal culture, also figure into the practice of horizontal application. Thus, while the constitutional text seems to allow for a robust, republican understanding of the communal, this same text has been employed in more or less expansive ways in the hands of different constitutional actors.

Early Development and Reversion

Albie Sachs and several other justices who joined Kentridge’s Du Plessis opinion quickly acknowledged the different logics the Final Constitution permitted in Carmichele v. Minister of Safety and Security.Footnote ¹⁰⁶ Carmichele established that the courts had an obligation to develop the common law in the light of the Constitution. The case concerned a man, charged with and jailed for assault, who committed another assault after law enforcement had released him on bail. The victim of the subsequent attack argued that police and public prosecutors had “negligently failed to comply with a legal duty” to protect her from a known aggressor.Footnote ¹⁰⁷ The High Court and Supreme Court of Appeal decided there was no evidence that law enforcement had “acted wrongfully.” And so, the applicant appealed to the Constitutional Court. The Constitutional Court, in contrast, rejected tendencies to distinguish between action and inaction on which, for example, the US Supreme Court had relied in DeShaney v. Winnebago County Department of Social Services.Footnote ¹⁰⁸ Rather, a provision similar (though, importantly, not identical) to Section 35(3) of the Interim Constitution provided the basis for the Constitutional Court’s decision. Section 39(2) of the Final Constitution states, “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”Footnote ¹⁰⁹ In contrast with the counterpart provision in the Interim Constitution, Section 39(2) explicitly obligates every court to attend to constitutional commitments. And so, in a unanimous opinion, the Constitutional Court recognized that it had an obligation to ensure that the common law developed according to such constitutional standards that inhered in the rights as to life, human dignity, freedom, and security.Footnote ¹¹⁰ Writing for the Court, Justice Ackermann cites the German Basic Law again, arguing that the South African Constitution also encompassed an “objective, normative value system,” and that it was within this value system that the common law needed be developed. Ultimately, the Constitutional Court referred the case back to the initial High Court on the basis that the common law admitted of different possible modifications to accord with constitutional values.Footnote ¹¹¹

Some question just how radical a break Carmichele was from Du Plessis. Michelman, for example, argues that the case reveals that the Constitutional Court “internalized some separation,” as between systems of law and courts, according to the same traditional paradigm on display in Du Plessis. Though all South African law had to conform to the Constitution, he explains, the common law was still developed within its own framework, evinced by the fact that the Constitutional Court sent the case back to the High Court. This, Michelman argues, is not all that different from the system of separate courts and, by extension, the indirect horizontal effect Germany maintains.Footnote ¹¹² Indeed, Justice Ackermann’s recurring invocation of Germany suggests its continual influence on at least some corners of the Court. Chirwa, on the other hand, points out that the duty to protect that emerges from Carmichele is a step removed from a typical liberal framework and particularly from the requirement that state action be present in order to enforce constitutional rights. He highlights how in the South African context the state is “liable for an infringement of a constitutional right by a non-state actor if it fails to take ‘reasonable and appropriate measures’ to prevent it.”Footnote ¹¹³

Considering the Constitution’s full treatment of rights in private spaces, and particularly Section 8, the South African model clearly goes beyond German Drittwirkung as private actors can be charged with rights violations directly, and not simply through the distillation of private law.Footnote ¹¹⁴ Though such doctrinal differences are important, equally if not more important are how the terms of debate shift and how such differences are, or are not, reflected in understandings of the Constitution’s role in the larger society. Does it provide a standard for the larger polity, including duties of private actors, and how does this society ultimately look, given the particular commitments of the Constitution? While a preliminary and cautious step, Carmichele does seem to set the doctrinal stage for future expansion of horizontal application. Robertson explains how “a stream of cases” followed Carmichele in 2001, all taking as granted that “nothing should stand in the way of the instantiation of constitutional values in the working of the law.”Footnote ¹¹⁵ Whether this drive for executing the constitutional project would steadily propel the development of horizontal application is a different question.

The year after Carmichele, the Court decided Khumalo v. Holomisa,Footnote ¹¹⁶ representing a concrete step to develop the Constitution’s provision for horizontal application in Section 8. Like Du Plessis and so many other horizontality cases, Khumalo concerned a defamation action. A South African newspaper accused prominent politician Bantu Holomisa of involvement in criminal activities, and he, in turn, sued for damages of defamation. The case came down to the newspaper’s right to freedom of expression (Section 16) against Holomisa’s right to dignity (Section 10). The newspaper (the applicant) argued that the common law rule of defamation needed to be developed further in order to comply with the constitutional right to freedom of expression. In particular, the newspaper argued that, under a proper understanding of the freedom of expression, plaintiffs ought never to succeed in defamation cases “unless they can establish that a defamatory statement was false.”Footnote ¹¹⁷

Writing for the Constitutional Court, Justice O’Regan acknowledged that the freedom of expression had horizontal effect, “given the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the State or organs of State.”Footnote ¹¹⁸ Nevertheless, this right had to be balanced against the right to dignity, as it also had horizontal effect. Weighing these two against each other, O’Regan concluded that the common law rules of defamation, in their current state, struck a balance that was, in fact, compliant with both of these constitutional rights commitments. She explained that newspapers and other media would only be charged for defamation when they could not establish that “the statement was true and its publication in the public interest, nor that the publication was reasonable in all the circumstances.”Footnote ¹¹⁹ However, she also drew attention to the great limitation that shifting the burden of proof to the plaintiff would entail for the right to dignity since it was sometimes impossible to demonstrate the falsity of a claim. Since the newspaper could establish neither the truth nor the reasonableness of the accusations, the Court decided that the common law rules were sound and favored the right to dignity on balance in this particular case.

In Robertson’s telling, the earlier Carmichele decision had been necessary “to bring the jurisprudence on the development of the common law into line with the much firmer stand taken by the Final Constitution after the weakness of the court’s decision in Du Plessis.”Footnote ¹²⁰ Khumalo thus fortified and built on this earlier decision by extending its logic also to apply to relations between private actors. Indeed, with Khumalo, constitutional commitments came to comprise the very content of those common law rules governing private relations. Moreover, and perhaps more importantly, under the precedent set by Khumalo, the concepts of constitutional rights and duties are not excised as they enter private spaces. Rather, individuals face the prospect that they, too, are accountable for such constitutional rights commitments as freedom of expression or dignity. Justice O’Regan does stipulate the need to consider the intensity and nature of the right before applying it horizontally,Footnote ¹²¹ and other judges have been at pains to emphasize that the processes of determining the constitutional duties of state and nonstate actors are not equivalent.Footnote ¹²² Even with these caveats, however, the process of balancing and ultimate judgment in Khumalo still rest on the recognition that the Constitution is a source to both rights and duties of private actors.

A degree of caution in a court as new as South Africa’s Constitutional Court does not come as a surprise,Footnote ¹²³ even in spite of (or perhaps in light of) the promise horizontal application holds for asserting institutional power and jurisdiction.Footnote ¹²⁴ Theunis Roux describes in the early Court a preference for “context-sensitive balancing,” or a tendency only to decide the case at hand rather than create broadly applicable rules to apply to future decisions.Footnote ¹²⁵ Stuart Woolman notices and laments a similar tendency a decade after the Final Constitution’s adoption, explaining how this practice may cut in either a progressive or regressive direction.Footnote ¹²⁶ To illustrate his concern that the Constitutional Court risked regressing, he cites three cases over a single year in which the Court backpedaled from Khumalo’s initial steps to develop horizontality.Footnote ¹²⁷ Such backpedaling is on vivid display in Masiya v. Director of Public Prosecutions when the Court omitted any reference to Khumalo, instead reverting to Du Plessis v. De Klerk as precedent. Woolman describes a hesitance to engage the substance of the Bill of Rights when formulating duties against private actors. In contrast with the documented rationale for which the framers included Section 8 in the Final Constitution, namely, to hold private actors accountable for the specific rights, the Court relied on the vague bases of dignity, equality, and freedomFootnote ¹²⁸ and on Section 39(2) concerning constitutional interpretation rather than direct horizontal effect. Of course, such provisions are important, even essential, to South Africa’s constitutional project, but they do not perform the function of generating specific duties corresponding to enumerated rights as the Section 8 drafters and ANC representatives had earlier envisioned.Footnote ¹²⁹

The historical record is clear that the ANC intended to effect thoroughgoing transformation in South African law and life, and to do so in part through the mechanism of horizontality. Explained in terms of this book’s republican interpretation, the practice of horizontal application has the ability to recast constitutional rights as larger values and thus becomes a means by which to orient more corners of the polity toward the commitments of the new constitution. Why, then, has the Court sometimes avoided applying the Bill of Rights directly to private actors in the way Woolman recounts? Naturally, a confluence of factors will shape judicial decision-making on any issue. One such factor, although by no means the sole or even most crucial one, is how constitutional actors downstream understand the constitutional project. The discourses emerging in and from different cases offer some insight into the range of possible understandings and how those different understandings map onto the more specific question of horizontal application. That some jurists, such as Justice Ackerman, frequently invoked Germany as a point of reference to understand the South African Constitution is telling. Others, such as Justices Sachs, Madlanga, and Moseneke, have been more inclined to define the project on its own terms.Footnote ¹³⁰ Moreover, important debates emerge around the role judges claim for the courts in light of a transformative Final Constitution. Ought judges to employ a jurisprudential minimalism or formalism so that the legislature may spearhead the constitutional project? Or should the Court itself take charge, assuming as much of the project as its institutional capacities permit to ensure the country makes good on its commitments? Considering South Africa’s practice of horizontality alongside that of other countries, the Constitutional Court maintains a role in the country’s transformative project. Even in its relatively short history, for example, the Court has shown itself increasingly willing to apply socioeconomic rights horizontally,Footnote ¹³¹ not a trivial thing when contrasted with other countries’ more bounded practices of horizontality.

On what basis, then, do people like Woolman criticize the Court as unduly minimalist, even regressive? Such critiques typically assess the Court’s practice less from a comparative vantage point than from a view internal to South Africa. That is, they weigh the Court’s actions against what the Constitution itself seemingly permits, and thus find its development of horizontal application as unnecessarily halting – from the tendency to rely on Section 39(2) rather than Section 8(2), to the invocation of the vaguer constitutional provisions. One might say that the Constitution permits a practice of horizontal application that is all but unfettered, for the very reason that the republican potential of horizontality keeps pace with the reach of the ANC’s constitutional vision. But Woolman’s account illustrates how this same republican potential may be cause for wariness, as well. Many cases, including the crucial Grootboom case discussed later, suggest that the Court was ready to cast the legislature as the primary executor of the ambitious Constitution rather than take on the more positive aspects of the project for itself.Footnote ¹³²

This dynamic confronts the question described at the end of Chapter 2, and elsewhere in this book, regarding courts’ status as sufficiently republican bodies to determine whether and when rights apply to private actors.Footnote ¹³³ The German Constitutional Court may not confront this tension in the same way as the German Basic Law undertakes a project that is somewhat more modest, at least in certain ways and comparatively speaking.Footnote ¹³⁴ As Mathews explains in his book, the German Constitutional Court was actually eager to assert itself against the other branches and other courts. Michaela Hailbronner notably classifies the Basic Law as transformative;Footnote ¹³⁵ however, the German Constitution is more modest in what it asks, both of state and citizen, compared to the South African Constitution. While Germany’s case history suggests a court comfortable with the doctrine (and doctrinal scope) it had a definitive hand in formulating, out of South Africa’s case history emerge both discourses that embrace horizontal application and even illustrate its full republican potential, and discourses that attempt to demarcate boundaries to this practice. Early decisions thus show some unevenness in both judicial discourses and ultimate decisions. Later decisions, particularly pertaining to such areas as housing and education that are integral to South Africa’s transformation, are a bit more consistent in their embrace of horizontal application and in their display of republican concepts.

The Negative–Positive Divide in Housing and Education

Questions of dignity, free expression, and defamation are by no means novel in horizontality jurisprudence. Nevertheless, in securing the Final Constitution’s provision for horizontal application of these rights, Khumalo paved the way for other, more distinctive rights of the South African constitutional order also to obligate private actors. These other rights arguably reached deeper into private spaces and, to this extent, could potentially effect transformation all the more. Decisions on housing, education, and even wills and testaments thus emerged, sectors that by themselves signal horizontality extending further into private spaces than in many other contexts. Moreover, the language and arguments in these later decisions reveal the power of a republican interpretation in this context. Language of “neighborliness” and “shared concern” often seems to replace mention of rights altogether, cemented only more in certain invocations of ubuntu. Thus, amid criticisms of some judges’ inhibitive formalism and conventional understandings, much in these later decisions may be read through the lens of constitutional ends, rather than mere rights, pertaining to a larger community of private actors maintaining duties vis-à-vis those ends.

While finding clear space in more aspirational understandings of South African constitutionalism, many of these new rights commitments threw the courts into somewhat unfamiliar territory. In particular, such socioeconomic rights as health and housing raised new questions about the separation of powers and scarcity of resources, both public and private. In recounting his experience in deciding the important Grootboom case, discussed later,Footnote ¹³⁶ Justice Albie Sachs acknowledged the unique difficulties that come with enforcing something such as a right of access to adequate housing, when so much depends on the actions of and resources of legislatures and even private proprietors.Footnote ¹³⁷ Such difficulties first came before the Court in Soobramoney v. Minister of Health, KwaZulu-Natal (1997),Footnote ¹³⁸ when a terminally ill man by the name of Soobramoney invoked his right not to be “refused emergency medical treatment” under Section 27(3) and his right to life under Section 11 of the Constitution in order to receive renal dialysis from a state-funded hospital. As Soobramoney was of limited means, seeking care from a public hospital was his only option to sustain his life even a little longer. And yet he remained at the back of the line for the necessary care.

While conceding Soobramoney’s right to receive and the state’s duty to provide care, the Constitutional Court argued that it was not in a position to compel the state or the hospital to provide care, potentially at the cost of others requiring medical attention. Given that his was an ongoing issue and not a medical emergency, his right was contingent on what resources might be available at any given time, a calculus the Court simply could not make. Soobramoney died shortly after, and criticisms arose about the apparently contingent nature of socioeconomic rights. That medical care was contingent on the availability of resources and even the patient’s particular financial means struck many as incongruous with what was supposed to be a transformative constitution, and cast initial doubt on the whole enterprise of socioeconomic rights. In some ways, the Court responded in the Grootboom case on housing a few years later, acknowledging its own institutional role in supporting the most vulnerable and even its ability to require other institutions to make “reasonable” efforts toward securing such rights.Footnote ¹³⁹

Housing is a salient and complex issue in South African history. From the outset of European colonialism in the mid seventeenth century through the Apartheid regime of the twentieth century, racially based laws and evictions displaced indigenous peoples leading to widespread impoverishment of black populations.Footnote ¹⁴⁰ Thus, the South African Constitution provided, “Everyone has the right to have access to adequate housing,”Footnote ¹⁴¹ and legislation established various parallel safeguards, from protections for occupiers facing eviction to specialized courts that would see through land reform.Footnote ¹⁴² The Grootboom case concerned a particular settlement, Wallacedene, where only 5 percent of the dwellings had electricity, 25 percent of dwellings had no income at all, and 50 percent of residents were children.Footnote ¹⁴³ Mrs. Grootboom was one among many residing there who had applied for low-cost, state-funded housing, but remained in this increasingly uninhabitable settlement. In the end, the Court decided that Mrs. Grootboom was not entitled to emergency housing, but acknowledged that parliament was charged with taking reasonable action on the issue of housing in general. In the words of Justice Yakoob, “The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream.”Footnote ¹⁴⁴ Housing rights are, thus, aspirational in the fullest sense. Although rooted in the core pathologies of South African history, housing is among the socioeconomic rights that involve such balancing of interests and capacities as to avert full and immediate realization.

While the Constitution specifies that the duty to provide adequate housing falls on the state, the very nature of housing is such that cases frequently involve private relationships. Even in Grootboom the Court recognized that a “right of access to adequate housing also suggests that it is not only the State who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing.”Footnote ¹⁴⁵ Those matters considered by the Land Claims Court, such as land restitution and eviction, raise questions of horizontal effect basically by definition.Footnote ¹⁴⁶ Moreover, several judgments of the Constitutional Court have concerned housing and explicitly address the question of horizontal effect.

In 2005, the Constitutional Court handed down the Modderklip decision.Footnote ¹⁴⁷ The owners of the Modderklip farm permitted some people to settle on the land. However, when thousands occupied the farm, the owners became overwhelmed and offered to sell the land to local authorities to accommodate the new occupants. The authorities refused to purchase and the local police demanded a high deposit to enforce the eviction order Modderklip obtained from a court.Footnote ¹⁴⁸ In the Supreme Court, Justice Harms acknowledged that housing rights could be enforced horizontally in theory, but decided that it could not in the present case.Footnote ¹⁴⁹ On appeal, the Constitutional Court did not technically rely on horizontal application, but instead ruled that the state had failed both in protecting the Modderklip company’s property rights and in securing the occupants’ right to have access to adequate housing.Footnote ¹⁵⁰ Although the Court chose not to apply horizontal effect explicitly, the Court’s remedy still involved balancing rights against each other and, to this extent, necessarily involved cooperation of the parties in securing the rights in question. In particular, the Court argued that eviction was at that point impossible given that, over five years, 40,000 people had come to settle on the farm and formed their own community.Footnote ¹⁵¹ As a remedy, therefore, the Court ordered that the state compensate Modderklip for the use of the land.

Although Modderklip was not responsible for the occupants’ right to have access to housing per se, the owners were, ultimately, still responsible for their housing in a practical sense. Moreover, although the occupants were not ultimately understood as trespassing, Modderklip was still entitled to compensation. Of course, the sheer logistics and financial cost of relocating 40,000 people figured into the solution the Court reached. At the same time, the Court’s judgment is punctuated with republicanesque ideas. As a discursive matter, the heart of this judgment is nothing less than a call for the private actors involved to participate in larger constitutional ends, to cooperate and even fulfill duties vis-à-vis one another. Quoting Albie Sachs in Elizabeth Port Municipality, discussed earlier, Justice Langa recounts the need “to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.”Footnote ¹⁵² In the context of the Modderklip case, the difficulty of the immediate circumstances, to say nothing of the longer history that occasioned these circumstances, asks of the parties these same characteristics of neighborliness and shared concern. Put differently, the Court seems to presuppose that the actors involved identify with and share in the values of the constitutional project. Indeed, the very fact that the Court avoided the language of rights in discussing the relationship between the owners and the occupants brings this point into sharper relief. With this choice, “[t]he Court looked to social and economic norms as reflecting a constitutional vision of solidarity that altered the relation of the property owner to the settlers.”Footnote ¹⁵³ By avoiding the language of rights in favor of expressions of the collective pursuit of constitutional ends, the case may be read as taking on a more republican cadence.

From an analytical perspective, moreover, attention to the larger constitutional vision articulated in Modderklip, rather than the fact that the Court does not understand itself as applying horizontal effect per se, allows the observer to appreciate the extent to which the actors do retain responsibility here and participate in the constitutional project in the ultimate resolution. Indeed, the articulation of the Constitution’s commitments in terms of rights is only one possible expression of these commitments, seeing as the South African Constitution itself understands the Republic as founded on the more general values of human dignity, equality, freedom, nonracialism, nonsexism, and so on.Footnote ¹⁵⁴ Helen Hershkoff finds this approach of avoiding rights language in other contexts, too.Footnote ¹⁵⁵ This is worth acknowledging for the aforementioned analytical reasons as well as for more substantive reasons to which Hershkoff draws attention. Speaking specifically of Modderklip, she explains:

While Modderklip does not technically employ the language of rights and duties between the private actors, the Court does “reshape a power relationship,” as Hershkoff puts it, to balance their conflicting interests against each other. Whereas, in most countries, Modderklip’s right to property might have controlled the outcome of the case, here the owners’ rights were subject to the broader framework of social welfare norms or, in republican terms, to a particular conception of the common good. This broader normative context does not negate Modderklip’s property rights entirely; nevertheless, it does require a general compliance with the constitutional vision. As these norms thus apply across spheres, private actors such as Modderklip are brought into the fold of the larger constitutional project.Footnote ¹⁵⁷

In the years following Modderklip, the Court still contended with the clash between the rights to private property and housing, often invoking the constitutional ethic of neighborliness and ubuntu of Port Elizabeth Municipality, discussed earlier.Footnote ¹⁵⁸ One such case was Blue Moonlight Properties,Footnote ¹⁵⁹ in which a development company sought to evict eighty extremely poor people living on the property the company had recently purchased. The company was aware of the occupiers’ presence prior to purchasing, and eviction would all but certainly lead to their homelessness. The City of Johannesburg claimed it had resources to provide emergency housing only for those evicted from publicly owned land. Because these people occupied private property, however, the city could not offer any accommodation.

In Blue Moonlight Properties the Court claimed for itself more positive aspects of the constitutional project than it did in Grootboom, when it went to great lengths to accommodate the other corners of government. Ultimately, the Court decided that the constitutional guarantees to equality and housing, in fact, required the city to find accommodation for these occupiers although they were on private property. In the meantime, and more relevant to this book, the property owners themselves had a positive obligationFootnote ¹⁶⁰ pursuant to these same guarantees to equality and housing. Calling for patience, the Court explained that the property owners would have to continue housing these people until city officials could find alternative accommodation.Footnote ¹⁶¹ The Court is clear that the company would not have to provide free housing indefinitely, but as long as was required to ensure these people would not be homeless.

Another salient issue for South Africa’s constitutional project is education, as significant discrepancies in education were part and parcel of the inequality of Apartheid. And indeed, an important horizontality case decided in the same year as Blue Moonlight Properties concerned the right to education. In Juma Musjid (2011), the Court considered explicitly whether a socioeconomic right imposed an obligation on a private actorFootnote ¹⁶² when a private trust took steps to evict a public school that convened on its property. The Constitutional Court decided that the trust had “no primary positive obligation”Footnote ¹⁶³ to provide an education for the students, nor an obligation to make available its property for public use as a school. Nevertheless, the Court found that the trust did have “a negative constitutional obligation not to impair the learners’ right to a basic education,”Footnote ¹⁶⁴ pursuant to Section 29 of the Constitution. The Court concluded that the trust had every right to seek an eviction order, but that the courts were not obliged to grant one. Indeed, in evaluating the eviction request, the lower courts were required to consider “the best interest of the learners”Footnote ¹⁶⁵ and their right to a basic education. Thus, the particular question at issue in Juma Musjid was how to balance the right to a basic education and the right to property.Footnote ¹⁶⁶

Following the reasoning in Khumalo, the Court explained that the horizontal application of rights, including such socioeconomic rights as to education, depended in part on “the intensity of the constitutional right in question.”Footnote ¹⁶⁷ In the context of South African history, the basic right to education did rise to such a level of intensity as to call for a more congruent application to public and private actors alike. The Court explains the particular significance of the right to education in light of the history:

Thus, much like cases concerning housing, the decision to apply this basic right to education horizontally was grounded in the very purpose of the South African Constitution. The crucial nature of the issue of education, the Court held, warranted summoning private actors also to participate in its remediation or at least to cooperate until an alternative venue for the school could be secured. Both the nature of past abuses and the unique position of many private actors to exercise influence in education were cause to involve such institutions as the Juma Musjid Trust in the constitutional project. As property rights had been formulated to disadvantage the black population during Apartheid,Footnote ¹⁶⁹ putting other rights, such as to education, on equal footing ensured that claims to private property did not have undue weight and were calibrated to constitutional ends.Footnote ¹⁷⁰ Moreover, as this decision of the Court to balance these as competing rights departed from the preconstitutional status quo, so too did the decision to cast the issue in terms of the duties of private actors. Aoife Nolan observes how, in Juma Musjid, the Court had the option to employ strategies similar to those in Carmichele and Modderklip that did not invoke constitutional duties of private actors. Instead, however, the Court did speak of duties and found the source of these private obligations in the Constitution itself.Footnote ¹⁷¹

Some fourteen years after the Court first confronted the issue of socioeconomic rights in the Soobramoney case, amici in Juma Musjid expressed concern that this later judgment might mark a kind of apogee for the Court’s jurisprudence in socioeconomic rights. Specifically, they worried the Court would hesitate ever to apply positive rights horizontally since it only applied socioeconomic rights horizontally as a negative matter in Juma Musjid.Footnote ¹⁷² Of course, the Constitution makes no reference to a distinction between positive and negative obligations as a limit on horizontal effect, stating instead that the Court ought to consider “the nature of the right and the nature of the duty imposed by the right.”Footnote ¹⁷³ Nevertheless, distinguishing between positive and negative obligations might have offered a more robust limiting principle to those looking for one – whether to shield any vestiges of those laissez-faire priors Kriegler criticized in Du Plessis, or to offer cover for a Court that, historically, showed reticence to embrace horizontality’s republican logic to extend as far into private spaces as the early ANC vision had aspired.Footnote ¹⁷⁴ For all intents and purposes, Blue Moonlight Properties, decided only a few months after Juma Musjid, imposed positive obligations on a private actor, namely, to accommodate people occupying their property while the city arranged for alternative housing. Nevertheless, it did so without using the words “positive obligation,” ensuring that this remained a live question in South African constitutional politics until at least the 2017 case Daniels v. Scribante and likely beyond as even later cases have shown reticence to speak of positive obligations.Footnote ¹⁷⁵

As explained in Chapter 2, the Daniels judgment decided that a landlord had a (potentially positive) constitutional obligation to ensure that his tenant lived in conditions consonant with human dignity. Ms. Daniels, the tenant, proposed to improve the property in several basic ways at her own expense: leveling the floor, installing a water supply, adding a ceiling, and so on. Despite the fact that Ms. Daniels’s dwelling was basically uninhabitable, the property owner objected on the basis that he might be held responsible for compensating Ms. Daniels for these improvements upon her moving out.Footnote ¹⁷⁶ If he allowed Ms. Daniels to make these improvements, the owner argued, he assumed a duty that could only be described as positive and, thus, beyond the parameters of horizontal application. This was not simply a negative duty as in Juma Musjid, but a positive duty requiring concrete steps on the part of a landlord. The fact that this required more from a private actor than had many past cases was of no moment, however, on the Court’s reading of the Constitution – nothing in Section 8(2) foreclosed the possibility that a socioeconomic right could apply horizontally. Thus, the case hinged on balancing the landlord’s property rights and the tenant’s right to live in dignified conditions, with the Court opting for the latter given Ms. Daniels’s dire circumstances.Footnote ¹⁷⁷ The year after writing the opinion in Daniels, Justice Madlanga reflected in a lecture on the decision’s significance in unreservedly embracing the Constitution’s provision for horizontal application and his hope that the bogeyman of direct horizontal effect as portrayed in Du Plessis had “been slain for good.”Footnote ¹⁷⁸

Describing private obligations in negative or positive terms, as did Juma Musjid and Daniels, respectively, may be a semantic question in certain instances. Perhaps litigants can basically achieve their desired result regardless of how they frame the issue at hand.Footnote ¹⁷⁹ As a theoretical matter, however, this constitutes more than word choice. Indeed, whether obligations of private actors stop where the language of positive rights begins has implications for the reach of a republican interpretation of horizontal application. On the one hand, extending even negative obligations to private actors encompasses them in the communal project. Indeed, their own rights are limited as they make concessions to (negative) constitutional ends that happen to compete and carry out constitutional duties with respect to their fellow citizens. At the same time, to limit the scope of obligations to the negative reflects some effort not to interfere too drastically in private actors’ freedoms – to put limits on the limits, if you will. As explained earlier, limits are entirely predictable as judges stipulate ranges of application for jurisprudential practices. Nevertheless, this particular distinction between negative and positive duties, this potential limit on the content of rights applied horizontality, points to deeper questions (and implicit answers) of how to understand freedom, even if such issues are not actually contemplated by the judges themselves.Footnote ¹⁸⁰

As Chapter 2 explained, much scholarship conceptualizes the crucial difference between liberal and republican notions of liberty as consisting in freedom as noninterference and freedom as nondomination, respectively. From a theoretic perspective, the choice not to apply positive obligations horizontally may be read as an understanding of freedom as noninterference and reluctance to restrict individual autonomy in more intrusive ways. By extension, this position tends to deemphasize the ways private actors use autonomy to restrict other rights (such as socioeconomic rightsFootnote ¹⁸¹) that could actually be constitutive of alternative understandings of freedom, such as nondomination. As judges thus favor a practice of horizontality limited to negative duties on the one hand, or extending it to positive duties on the other, they effectively chart bounds for how far a republican interpretation might reach in a given case or context. On either understanding, we see a bringing of private actors into the communal space. The question becomes in what ways and how much of the private sphere will be encompassed into the common ends of the constitutional project. Scholars such as Sandra Liebenberg argue for the need to take seriously the relationship between socioeconomic rights and equality in the Constitution and thus to resist more traditional understandings that prioritize the negative duties that typically have pride of place in common law.Footnote ¹⁸² And yet, the foregoing cases show the extent to which the Court’s arguments still find different theoretical homes. Later developments show all the more how these theoretic questions are engendered in decisions of the Constitutional Court, as well as the implications of these for a republican interpretation.

A Return to Common Law? Attempting Another Limiting Principle

Just a few months after the Court handed down its judgment in Daniels v. Scribante, it decided Baron v. Claytile Ltd,Footnote ¹⁸³ which again raised questions of horizontal application in the context of housing and eviction. Baron followed Modderklip in the sense that the Court was hesitant to assign a private actor duties to guarantee housing rights. In particular, the Court decided that an employer did not have an obligation to continue providing former employees with housing, insofar as the Constitution designated this duty as belonging specifically to the state. To be sure, realizing a right to have access to adequate housing as a matter of fact is a major endeavor. While the primary obligation rested with the state, however, even after Baron it is conceivable that private actors be asked to cooperate in much the same way as in Modderklip and Blue Moonlight Properties. Indeed, courts still retained the ability to decide whether a particular eviction was “just and equitable.” Therefore, while the duty to provide adequate housing was technically the state’s, a private actor could functionally assume responsibility even for such positive rights as to housing.

The adjacent decisions of Daniels and Baron in the 2017 term of the Constitutional Court demonstrate how horizontal application is as much a live issue as it is a complicated one. Baron in particular shows that the Court maintains some limits on the extent to which private actors have constitutional duties. Nevertheless, even in Baron, the Court continued to operate on the basic presumption that private actors could have rights obligations. The later Pridwin Preparatory School caseFootnote ¹⁸⁴ in some ways illustrates a continued trajectory when the Court took yet a further step in applying rights horizontally to conclude that private schools had a constitutional duty to provide a basic education – specifically that administrators could not dismiss students from the school without giving due weight to the children’s right to an education, as through a hearing. The Court argued that this duty existed regardless of any specific terms to which the school and parents contracted. While the Court as a whole seems willing to apply direct horizontality more readily in Pridwin, the judgment still leaves many questions related to horizontal application unanswered and perhaps renders them more ambiguous than before.Footnote ¹⁸⁵ Much of this ambiguity may be traced back to the 2007 case Barkhuizen v. Napier and how the judgments in Pridwin employ this precedent.Footnote ¹⁸⁶

In Barkhuizen, the Court declined to apply constitutional principles directly to challenge the terms of a contract, insofar it was a private contract and not a law of general application.Footnote ¹⁸⁷ Instead, the Court considered whether the terms were reasonable and fair, ultimately giving priority to the principle of “pacta sunt servanda” (that “agreements must be kept”) rather than the competing constitutional rights that might have led to some adjustment in the common law. In his majority judgment, Justice Ngcobo explained that this principle of “pacta sunt servanda” itself “gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.”Footnote ¹⁸⁸ These rights, however, are enforced simply through fulfilling the terms of the private contract and preserving existing common law understandings, as opposed to subjecting the contract to other principles arising specifically out of the 1996 Constitution.

In some ways, Pridwin may be read as assuming this position that contracts are insulated from direct constitutional scrutiny. Indeed, some critics, such as Meghan Finn, find that it presumes an even greater degree of insulation than Barkhuizen required. While the prior Barkhuizen case acknowledged the possibility that constitutional principles could apply indirectly to contracts by reshaping common law understandings, Finn explains, the Court’s judgment in Pridwin “perpetuates the sense that there are parallel systems of law: one that is shaped by and tested against the Constitution, and another that is autonomous and can be ignored, rather than constitutionally infused.”Footnote ¹⁸⁹ In other words, although the judgment in Pridwin ultimately did employ horizontal application, it did so solely on the basis that a constitutional right was invoked and, thus, explicitly in play rather than recognizing that constitutional standards might also bear in some way on the terms of a private contract. In Finn’s telling, such a binary framework insulates private contracts to an extent the prior Barkhuizen case did not require, undercutting the full transformative potential of a practice of horizontal application.Footnote ¹⁹⁰

Such doctrinal questions as these cases raise risk getting technical very quickly. To what, then, does all this amount for the purposes of this book? In many ways, this question of the status of contract law vis-à-vis constitutional values echoes the same concerns of the National Party in the negotiations, of the Supreme Court of Appeal after the establishment of the Constitutional Court, of the majority in Du Plessis v. DeKlerk. In later jurisprudential developments such as Pridwin, one can likewise read theoretical concerns about what areas of law and life are (or are not) encompassed in the public project. Even under such a transformative constitution as South Africa’s, private contracts seem to maintain a specially private status in many judgements of the Court, such that they are not so readily subsumed into the Constitution’s transformative project as other areas of law. How horizontality applies to contracts has been contested much more and much longer than the horizontal application of housing rights, for example. In the terms of this book’s republican interpretation, one might read in this history and these judgments a reticence to bring the same parity to encompass certain areas of private life into the constitutional domain. Thus, in a similar spirit to the negative–positive duties distinction discussed in the previous section, the arguments underlying these technical doctrinal developments ultimately implicate the discourses to which a republican interpretation may extend.

That there are lingering questions becomes only more apparent when reading Pridwin’s judgment alongside Beadica v. Trustees,Footnote ¹⁹¹ handed down on the very same day and authored by the same justice, Justice Theron, but undoubtedly different. Invoking the principle found in Barkhuizen of “pacta sunt servanda” (“agreements must be kept”), in Beadica, Justice Theron argues that, in fact, the contract in question ought not to be overturned on the grounds of public policy as the encroachment was not sufficiently severe. Indeed, both the functioning of society and constitutional morality depended on the ability to have one’s contracts enforced. So, the question becomes how to square these two cases, Pridwin and Beadica, seemingly similar in the issues they confront and yet engendering very different discourses. Pridwin involved the right of children to an education, a potentially crucial point given the pattern of horizonal application, and the fit of a republican reading of horizontal application, in the context of housing and education.Footnote ¹⁹² At the same time, Finn and other scholars worry about the way Pridwin confines horizontality to just these kinds of clearcut rights issues. While Beadica ultimately does not employ direct horizontal application, it also does not employ the same “parallel systems of law” that Finn fears, but instead seems to signal a return to Barkhuizen and the possibility of indirect horizontality in contracts.Footnote ¹⁹³

If contracts are a useful area to observe different accounts of the reach of South Africa’s transformative constitutionalism, then testamentary decisions may offer even more insights. To the extent that wills are among the more personal (or private) of documents one could draw up, testamentary decisions constitute important cases within which to find (or not) the kind of republican discourse with which this book is concerned. The way in which constitutional actors discuss wills and testaments relative to the constitutional project may thus reveal different conceptions of just how far into the private sphere certain actors mean to reach in applying horizontal application. And indeed, while varied in their reasoning, the judgments in the 2021 case King v. De Jager prove uncommonly receptive to a republican interpretation.

In King v. De Jager, the Court considered a 1902 will stipulating that the testator’s farms would be passed down only to male descendants for the subsequent three generations. One of the later beneficiaries bequeathed a portion of the original land to his daughters, however, leading some male descendants to file suit. The Court thus confronted the question of whether the limitation that only male descendants could inherit could be enforced in view of the Constitution’s prohibition of discrimination on the basis of gender. In three different judgments, all contrary to the prior decision of the High Court, the Constitutional Court decided that this provision could not be enforced. The first judgment, by Justice Mhlantla, relies on Barkhuizen, arguing for the development of common law and the idea that private testamentary provisions could only be enforced as they complied with public policy, including constitutional values.Footnote ¹⁹⁴ Ultimately, this amounts to a version of indirect horizontality. The majority opinion, penned by Justice Jafta, realized the same outcome that the will ought not to be enforced, but instead reached this result through consideration of Section 9(3) of the Constitution, against unfair discrimination, as well as the Equality Act of 2000, passed with the express purpose of giving greater effect to such constitutional values. Section 8 of the Equality Act understands unfair discrimination specifically as including “the system of preventing women from inheriting property” and “any practice … which impairs the dignity of women and undermines equality between women and men.”Footnote ¹⁹⁵ The third judgment by Justice Victor largely agreed with the majority, writing to emphasize the efficacy of the Equality Act as well as the role of direct horizontality in ensuring that the existing legislation does indeed protect the right in question.Footnote ¹⁹⁶

While largely tracking the reasoning of the majority judgment, Justice Victor’s concurrence offers a great deal from which to draw a republican interpretation.Footnote ¹⁹⁷ She speaks of the need to realize “substantive equality through the lens of transformative constitutionalism.”Footnote ¹⁹⁸ Likewise, she finds that this case is controlled by a capacious interpretation of equality, the Constitution’s very raison d’être,Footnote ¹⁹⁹ in contrast with the impulse to insulate the content of private wills and risk perpetuating Apartheid in private spaces.Footnote ²⁰⁰ More than a mere call for balancing competing rights, Victor’s concurrence thus articulates the republican conviction that even this exceptionally private sphere of action ought to share in the public project and not detract from constitutional ends. She tellingly concludes by connecting this vision with the principle of ubuntu – in her words, “the adage that none of us are free until all of us are free.”Footnote ²⁰¹ Victor goes on to quote Justice Mokgoro’s explanation of the Bill of Rights from a prior case as “an all-inclusive value system, or common values in South Africa” that encompasses, among other values, “group solidarity” and “conformity to basic norms and collective unity.”Footnote ²⁰² While horizontal application inevitably concerns rights, such accounts as these reveal a different take on the phenomenon – specifically that it may also give rise to certain communal ends and duties to contribute to those ends.

Conclusion

Both the German Constitutional Court and the South African constitutional framers introduced practices of horizontal application with the express intent of breaking from their respective pasts and setting course for a future governed by new constitutional commitments. In their jurisprudential histories, this move to horizontality aspires to a certain parity of governing principles across spheres. Nevertheless, the different content of these respective constitutional projects makes for different articulations and applications of horizontality. The German practice of horizontality finds expression through more classical rights and its civil law tradition. While German Drittwirkung still effected parity, initially this parity only extended so far into private spaces before private actors began to resist, as Chapter 5 explained.

On the other hand, the ANC’s constitutional vision for South Africa explicitly aimed to upset background assumptions of more traditional accounts of constitutionalism, and upset these assumptions for the purpose of effecting broad change across spheres. Put differently, the broad practice of horizontal application, even in what are traditionally considered more private spaces, aligns with the ANC’s constitutional project to transform all sectors of society. A republican logic that public values apply to private spaces exists in other areas of constitutional politics beyond horizontality as well, including statutory developments such as ESTA (the Extension of Security of Tenure Act of 1997) and the complex area of customary law. As to the latter, customary law has been elevated as a recognized source of law in South Africa. Nevertheless, the Constitution still requires parity of tribal law with constitutional principles.Footnote ²⁰³ A republican logic thus comes into sharp relief with the reformulation of rules on inheritanceFootnote ²⁰⁴ and female chiefsFootnote ²⁰⁵ according to the Constitution.

From a bird’s eye view, horizontal application seems to be expansive in South Africa relative to other countries. Of course, recent cases reveal continued complexity arising from traditional and formalist elements that persist in South African legal culture. However, when the Constitutional Court has chosen to apply horizontality, its language exemplifies a republican conviction that private entities have a role in the larger constitutional project, in contrast with traditional distinctions between public and private and, arguably, in line with the ANC’s early vision. In this new constitutional terrain, rights assume more ambitious meanings and continually alter the terms in which relationships among citizens are understood.

Prior chapters recounted debates surrounding the horizontal application of constitutional rights to nonstate actors in national contexts. While the particularities of these constitutional orders vary dramatically, comparisons can be made across both time and place. In one way or another, republican themes recur in these discourses, as constitutional actors seek some parity in governing values across spheres and introduce, to a greater or lesser extent, a category of constitutional duty for private actors. As national courts have considered horizontal application, so too has the Court of Justice of the EU considered the extent to which EU law creates obligations for private or nonstate actors.

EU law is typically understood as binding Member States,Footnote ¹ requiring national institutions to adopt specific legislation or policies. Nevertheless, certain instances of EU law have been interpreted to obligate private actors as well. That EU “regulations” apply to private actors is more or less analogous to national statutes doing the same and, thus, not an issue of serious debate given the legislative function of the European Commission and Council. On the other hand, that such a foundational document as the Charter of Fundamental Rights might have horizontal application has been a source of controversy. Indeed, the constitutional nature of this document raises all of the same objections that jurists and scholars have leveled against horizontal application in national contexts and a host of others stemming from the fact that the EU is a supranational body.

What, then, might this book’s republican framework contribute to our understanding of the EU, and particularly horizontality in the EU? What can republican theory illuminate in a context where one cannot so easily take for granted shared commitments and bonds of citizenship? The EU is indeed very different from any other legal order this book considers and has been examined by scholars and practitioners in a way that the nation-states this book considers have not. Like the prior chapters, this chapter also recounts countervailing factors working against horizontality, as well as the republican themes that emerge in response. Those factors countervailing against horizontality in the EU’s political and scholarly debates are tied up with questions about the very nature and project of the Union. The question of integration and the extent to which the Union itself approximates a republic come into play as political and legal actors debate the place and limits of horizontality in Europe. Indeed, debates in both scholarship and cases of the European Court of Justice (ECJ) track these large questions about the character and aspirations of European unity.

Whereas Chapters 3 and 4 centered on the question of whether horizontality can be applied from a constitution, and Chapters 5 and 6 on the question of how far the constitution can be applied horizontally, this chapter’s inquiry is at a higher level. Specifically, underlying the arguments of scholars and actors in this context is the question of whether and in what ways the ECJ and other actors may even consider the question of horizontal application in the first place. Is the EU enough of a political community for its institutions to speak about a discernable private sphere, and therefore potentially to speak to private actors? Or, rather, does its supranational nature somehow serve as a theoretical (and practical) barrier against horizontal application?

These are different sorts of questions than those considered previously, to be sure; however, republican themes emerge from both Eurosceptic and more pro-European perspectives. Republican intuitions certainly underlie those who emphasize the Member States as political communities, but they are also present in those arguments that find potential for something like republican political community and, by extension, horizontality at the Union level. We still see concerns about parity among separate spheres, for example. However, in the European case, the concern is with parity across domestic legal systems with supranational legal commitments. Moreover, whereas prior chapters often recounted constitutional actors resisting horizontality to maintain autonomy in the private sphere, here we see political actors and institutions of Member States trying to maintain domestic autonomy vis-à-vis a broader transnational sphere. Likewise, questions concerning duty arise, but always in the context of larger questions about the nature of European citizenship. Thus, as the republican lens uncovers new theoretical significances in debates over horizontality in the EU, so too do the distinctive features of the EU show additional nuances in a republican conception of horizontality.

In a certain way, horizontality in the EU is actually relatively noncontroversial and is even built into the Union’s purpose. Indeed, the Union’s original goal of creating a common market necessarily implicates private economic activity and, on this basis, may itself be described as a horizontal project. On the other hand, it is the Member States themselves that are the primary parties to EU treaties. This leads to the distinctive situation in which certain EU legislation, known as directives, do not apply horizontally insofar as they are aimed at the Member States’ governments alone. However, the Charter of Fundamental Rights potentially does apply horizontally to private actors, as well as to applications of EU law, but does not necessarily bind the domestic law of individual Member States. Of course, this is in direct contrast with the typical arrangement within many nation-states in which ordinary legislation is the default mode of governing private actors, and higher law applies horizontally only sometimes, if at all. The EU certainly presents an unusual case when it comes to the question of horizontal application. However, it is precisely this unique character that makes the EU experience an important, if singular, bookend to a republican account of horizontality.

With the Charter’s introduction and other developments over time, EU law has increasingly transcended its original economic ends to encompass a broader net of political issues and, in turn, has raised questions about the evolving nature of the project. In connecting the horizontal application of the EU Charter with such larger foundational questions about a European res publica, the republican framework proves useful. As with prior chapters, it does not attempt to resolve the debates or even to craft one coherent narrative of this dynamic and indeterminate political experiment. Rather, this chapter applies a republican lens in order to appreciate certain theoretical potential in the arguments many European actors and scholars have made in these debates. The first section of this chapter briefly recapitulates some of the theoretical background of prior chapters to lay out more fully the question of republican horizontal application in the context of the EU. The second section turns to scholarship on the EU, examining debates concerning republican politics and citizenship and drawing out the implications of European unity to the more specific subject of horizontal application. This section argues that particular republican resources in the EU, and aspirations of some European actors, bear important theoretical connections with horizontal application. The final section takes a closer look at ECJ decisions and scholarly literature on horizontal application in order to highlight the republican themes that emerge from many of these lines of argument.

The Republican Framework Applied to Europe

This book argues that horizontal application constitutes a republican vein in liberal constitutionalism. This practice applies constitutional rights to create new duties of private actors, thereby achieving greater parity between public values and certain corners of the private sphere. In contrast with traditional understandings in which constitutions create obligations only for the state, judges and other constitutional actors operating on a horizontal understanding derive duties of both state and nonstate actors from the same constitutional source. Much in the same way that constitutional rights insulate certain subjects from the political process, a horizontal understanding shifts the venue for debating questions that arise in the private sphere from the realm of ordinary legislation to more durable, and more fundamental, constitutional law. Horizontal application thus alters traditional premises about the public–private divide to expand the function of a constitution and the scope of constitutional rights.

This republican framework arguably goes further than the conventional liberal logic to help us understand and ground horizontal application in national contexts. But can republicanism bear the same theoretical connection to horizontal application in such supranational contexts as the EU? Much in republican thought presupposes a common sense of polity and citizenship, concepts which many take for granted in national contextsFootnote ² but which people question in the EU. Perhaps scholars and jurists arguing for the horizontal application of the Charter may not as easily appeal to the shared sense of purpose or the sense of common membership that appeared in discourses surrounding horizontality in prior chapters.

To this extent, it seems possible that scholarly and political commentators might not be able to wield the same republican themes in pursuing horizontality at the continental level. At this high level, horizontality could potentially entail the reshaping of broad swaths of European society, applying the values of the Charter to private actors across Member States. Moreover, this step would admit rights claims of individuals within one Member State against individuals of a separate Member State. But could citizens of two different countries, albeit in the same global region, have duties to one another in the same sense as citizens of the same nation? Such suggestions are not beyond imagination and certainly seem possible today as a technical legal matter. Still, horizontal application in the EU poses a unique set of challenges, prompting additional examination to determine how the republican framework may yet apply in this context.

Republican Aspirations in the EU

Scholars have debated at length whether the EU is compatible with a republican conception of politics and citizenship. This broad, seemingly theoretical question speaks to the more practical issue of building and sustaining the EU as a genuine political community rather than just another international alliance. Moreover, the answer to this question bears on whether a republican account of horizontal application is theoretically possible in this context or if, instead, the case of the EU constitutes a limitation to this argument. Scholars tend to consider the republican credentials of the EU by asking two specific questions. First, to what kind and degree of integration does the European project actually aspire? Second, to what extent does (or can) a European identity permeate the popular imagination? If, per the first question, the ultimate goal is to establish a full-blown political community characterized by common rights and values rather than simply a close-knit international alliance revolving around economics and security,Footnote ³ then the ability to foster commitment to something like republican politics and citizenship, per the second question, becomes nothing less than an existential concern for the EU. Indeed, the success of the European project comes to hinge on a widespread identification with, as well as some responsibility toward, Europe and one’s fellow Europeans.Footnote ⁴ This chapter takes up these two questions in turn, reviewing important relevant debates in the EU in order to lay groundwork for an ensuing discussion of horizontal application.

What is the nature of the European project? Did it originally or does it now include what we might characterize as republican aspirations, as to establishing a distinct res publica or a European citizenry? Initially political actors, including judges serving on the ECJ, proceeded as if Europe were primarily an alliance centered around free movement and economics.Footnote ⁵ This mindset is manifested in the phenomenon that EU law sometimes is not effective unless a case involves some crossing of national borders, a fact that can prevent citizens’ residing within a country’s borders from invoking EU protections, so leading to the phenomenon of reverse discrimination.Footnote ⁶ The ability of law to touch individual citizens seems to be a crucial feature of political community in the full sense of the term.Footnote ⁷ If, then, this sort of crossing of borders is necessary to trigger EU law, Europe is still more of an international community than a federal-supranational one. In this case, the practical reality of the European project cannot but fall short of republican conceptions of the polis and civic feeling, even if Europeans aspire to something more.

Through a lengthy process punctuated by numerous treaties, actors in favor of the European project now more explicitly aim at securing a shared set of rights and recognition of some sort of constitution.Footnote ⁸ Some more hesitant scholars challenge attempts to apply such domestic concepts to this international context,Footnote ⁹ or label the expansion of the European project “competence creep.”Footnote ¹⁰ Others maintain that this commitment to a common European identity has been the aim of the project from the very beginning.Footnote ¹¹ Wherever one falls on these issues, it is difficult to deny the capaciousness and ambition of the European project at least since the Treaty of Lisbon. Therefore, considering the intended degree of integration, at least now it is clear that pro-European actors aspire to something beyond mere economic or security alliance. To this extent, the supranational institution must concern itself with questions of political community and citizenship, even if integration remains a stilted process, with such disruptions as Brexit.

While the European project is one of unity and integration, scholars and political actors still interpret differently what this means as a theoretical and practical matter. Some put greater weight on the limits of Lisbon and, previously, Maastricht, arguing that a robust national sovereignty remains a part of the larger plan.Footnote ¹² Others, in contrast, more readily concede European primacy.Footnote ¹³ However, even those who admit of a larger role for Union governance debate what this means for the Member States. Michel Rosenfeld, for example, understands integration as entailing some prior negation of national identity,Footnote ¹⁴ while others, such as Willem Maas, emphasize the possibility and practical reality of multilevel citizenship.Footnote ¹⁵ In some ways, these arguments may constitute a difference in emphasis rather than substance. Nevertheless, these different positions entail real consequences for the status of the EU vis-à-vis Member States, particularly regarding such contested questions as sovereignty and governing authority.

Of course, these debates are not restricted to academic fora. In the Lisbon Treaty case the Federal Constitutional Court of Germany sought to protect democratic legitimacy and national-constitutional identity for Germany while remaining open to the EU project of unity.Footnote ¹⁶ Essentially the Court was willing to cooperate with EU legislation and ECJ decisions, but not at the cost of Germany’s sovereignty. Accordingly, the FCC decided that it maintained competence to rule on whether the Treaty of Lisbon was compatible with Germany’s larger identity and fundamental commitments. While the Court would concede the “primacy of application of European law,” the fundamental principles of the Basic Law could not be annulled. In Rosenfeld’s terms, German governing institutions would only participate in the negation of national identity to a point. Nevertheless, this attempt by the German FCC to stake its ground in the ongoing disputes over competence and jurisdiction came only after other decisions that went a long way to assert the primacy of EU law and institutions, including Van Gend en Loos and Costa, discussed later.Footnote ¹⁷

Though there are legal articulations of the European project, as in the treaties mentioned above, what the nature and aspirations of the Union are depends on whom one asks. Is there something akin to a European polis or common good? Are there, in any meaningful sense, European values and European citizens? Or do the Member States remain the primary loci of politics and citizenship? The answers to these questions are largely political and remain to be worked out. Indeed, the answers may exist along a continuum rather than as an either–or formulation. As Besselink says, this is not a zero-sum game.Footnote ¹⁸ As long as the European project exists and actors continue to pursue integration, the debates in this context may still be understood through the republican lens. Such integration, though incomplete, may already resemble something like political community as understood in the republican tradition.

Pursuing a Civic Identity for Europe

In light of this republican understanding of debates over the European project, what might the republican lens show us about related questions concerning European citizenship and civic identity? In classical republican thought, one’s status as a citizen meant everything; it defined one’s rights, duties, and very way of life. It was with one’s fellow citizens that a person engaged in political deliberation and so determined the fate of the polity. What, then, does it take to have people identify as fellow citizens of a place? More specifically, can European identity plausibly constitute some degree of individuals’ understanding of self and duties? David Miller addresses this issue, explaining the need to have “something that can hold people together despite differences of class, religion, ethnicity, and so forth, and allow them to cooperate politically.”Footnote ¹⁹ He continues to explain that “[t]he mere fact of being subject to the same political system is not sufficient.”Footnote ²⁰ However, the resources available to classical republics, such as a cultural identity manifested in a common nationality, language, or religion, are not available to European institutions. Moreover, cultural identity cannot be manufactured, as such an imposition of culture would violate the rights of minorities according to our contemporary standards.Footnote ²¹ If European institutions cannot turn to these characteristics to cultivate a sense of peoplehood on the continental level, must they not look elsewhere?

Jürgen Habermas argues that a kind of “constitutional patriotism” may offer sufficient basis on which to found and cultivate a sense of peoplehood. Europeans include individuals of various ethnicities, native languages, and even nationalities, but they may share devotion to a European constitution. Taking this idea to heart, EU institutions and Member States moved to adopt a European Constitution in the Constitution Treaty of 2004.Footnote ²² However, this effort failed to garner necessary support for ratification in the national referenda of France and the Netherlands. Those arguing for Habermas’s constitutional patriotism post-2004 would have to contend with this mixed history as a result. Perhaps one could cite common values or a shared commitment to such foundational principles as those articulated in the Charter of Fundamental Rights. If European institutions could, in fact, cultivate and sustain a politics centered on such principles, then, Habermas seems to suggest, the prospect of a European civic identity may not be out of reach.

Writing just a few years after the failure of the European Constitution, Miller maintains that these efforts toward constitutional patriotism still come up short. He highlights Habermas’s own articulation of the objection that constitutional patriotism is “too weak a bond to hold together complex societies.”Footnote ²³ Miller raises several issues on this point. For one thing, he questions whether the rights articulated in such treaty documents as the Charter are so different from national constitutions that they would, in fact, inspire the requisite devotion to what is distinctly European. After all, do not many countries express commitments as to a right of human dignityFootnote ²⁴ and of equality before the lawFootnote ²⁵? And how might unity emerge if different actors and institutions among Member States interpret provisions in conflicting ways? In response to such objections, Habermas explains that the focus of loyalty need not be on any definitive account of the treaties but on the “common horizon of interpretation” a constitution provides for a people.Footnote ²⁶ In other words, it is the very debate about these principles that binds the people,Footnote ²⁷ the mere fact of being in dialogue about them, an idea not unlike the contestatory politics that figures prominently in republican thought. Habermas similarly explains in other places that “what unites a nation of citizens as opposed to a Volksnation, is not some primordial substrate but rather an intersubjectively shared context of possible mutual understanding.”Footnote ²⁸ Miller remains unconvinced, however, maintaining that such formulations seem “tantamount to admitting defeat” since “possible mutual understanding is surely something that exists between people everywhere.”Footnote ²⁹ This point is well taken, but Miller seems to give short shrift to the prospect that what is “possible mutual understanding” may ultimately become, or in some ways have already become, actual and, moreover, develop a distinctly European character.

To the extent that Miller does entertain the possibility of identifying a European common good as embodied in a constitution or treaty document, he is ultimately skeptical that this could inspire devotion in the common EU citizen. He joins many in arguing that EU politics suffer from a democratic deficit and do not create sufficient space for popular participation,Footnote ³⁰ what should be a staple in any republican political community. In a way Habermas recognizes these deficiencies, too. The difference, again, is that Habermas still sees a way forward. In particular he advocates the development of a European public sphere, “created on the one hand by a European-wide civil society of voluntary groups and on the other by a European party system whose members would address European rather than national issues.”Footnote ³¹ He accepts that European politics and citizenship will remain perfunctory and merely legal in the absence of such a public sphere. Perhaps it is this exchange that reveals the real impasse on the question of cultivating a European people. Indeed, it is at this point that we begin to see how Miller’s objections are rooted in basic beliefs about the scale on which republican politics may be conducted.Footnote ³² Miller states:

In Miller’s telling, there does not seem to be much that anyone or any institution can do to foster republican politics and citizenship on the broad scale of the EU. Indeed, interests inevitably remain diverseFootnote ³⁴ and, it would seem, centered around state, regional, and municipal divisions so that individuals simply do not have a reason to invest in politics on a continental level.

Of course, European politics can develop in any number of ways in the coming years. And although the possibility of realizing republican politics on the broad scale that is Europe is an empirical question beyond the scope of this chapter, it also depends on how we understand republican politics at all. Again, Maas illustrates in his account of multilevel citizenship that these issues of national and supranational identity need not be either–or questions.Footnote ³⁵ Moreover, these questions are not unique to the European community, but confront virtually all federal systems and even unitary countries that are diverse. In this understanding, Europe might have more resources at its disposal to cultivate a republican politics than some scholars concede. Time alone can shed further light on these questions where the theoretical and the practical intersect.

Republican Politics, Sovereignty, and Horizontality in the EU

How do these musings on the possibility of republican politics in the EU bear on the more specific question of horizontal application in the EU? Johan van der Walt begins to answer this question when he demonstrates how the issue of horizontal application, perhaps more than any other doctrinal issue courts confront, prompts questions about sovereignty. He points to the logic of the Lüth case to make this point.Footnote ³⁶ In this case, discussed in Chapters 2 and 5, the German FCC argued that the Basic Law included an “order of objective moral and legal principles” that “radiate” to affect public and private spheres alike. This sets up an understanding of the Basic Law as potentially speaking to all issues of law and life in Germany.Footnote ³⁷ Even though Van der Walt ultimately takes issue with other aspects of Lüth,Footnote ³⁸ he views this kind of power to govern all spheres of life in a polity as definitive of sovereignty. When the FCC declared that values of the Basic Law radiated to all spheres, therefore, the Court both presupposed and accrued a certain sovereignty on behalf of the Constitution and the institutions that give it effect – not least the Court itself, which exercised its ability to regulate private spaces in Lüth.Footnote ³⁹ This theoretical connection between the regulation of private entities that arises from horizontal application and the concept of sovereignty is a recurring theme within arguments that are more hesitant about horizontality in EU law.Footnote ⁴⁰ Indeed, when it applies EU law horizontally, the ECJ accumulates some measure of governing power to the European level of governance, probably at the expense of Member States.Footnote ⁴¹ It is for this reason that Van der Walt describes Lüth as having a dual destiny in Europe – while its initial instantiation in the 1958 case presupposed and bolstered the sovereignty of the German state over the private sphere, its subsequent applications in ECJ case law appropriate this same conception of sovereignty to the EU, over Germany and other Member States.Footnote ⁴²

Although republican political theory employs different language, its concepts convey something similar to Van der Walt’s discussion of sovereignty. Moreover, the republican framework does additional work to distinguish the phenomenon of horizontal application from other claims of the ECJ to sovereignty, as in such earlier cases as Van Gend en Loos and Costa.Footnote ⁴³ Put differently, republican theory and, specifically, the republican features this book has conceptualized as parity and duty move beyond the often imprecise language of sovereignty to uncover a thicker, more detailed account of what scholars and political actors understand to be at stake in the horizontal application of EU law.

First, Chapter 2 demonstrated how parity in the law governing both public and private spheres is a distinctive feature of horizontal application. As horizontal application rejects the strict separation of public and private spheres in favor of parity, it finds affinity in the republican idea of a common good encompassing the polity as a whole. Though government will always be in the business of regulating the private sphere, instances of horizontal application are distinct in that individual duties and duties of the state share a common origin in fundamental law. This common source of governance, of authority, implicitly recognizes a distinct “public thing,” an accepted common good, that governs a particular area and a particular people understood as its own body politic. In other words, the horizontal application of rights both presupposes and reinforces borders of place and people. When the ECJ applies EU law horizontally, it is akin to declaring a European “public thing” and a European people, perhaps even prior to those of the Member States.

Secondly, and relatedly, the concept of duty introduced in Chapter 2 speaks to this set of questions. Horizontal application, by definition, derives from public commitments certain duties of individuals vis-à-vis their fellow citizens. This presumes a particular “public thing,” as stated earlier, but also a particular people, charged with duties toward one another insofar as they all recognize and live under the same fundamental law. One can understand this in formal terms concerning people’s legal obligations in a particular place, or in more functional terms of what people actually recognize as their duties. In either case, horizontal application presupposes a discernable citizenry that recognizes the authority of a particular fundamental law giving rise to its duties. The republican lens thus shows the significance of the question of horizontal application by revealing how it relates to more basic questions about a European “public thing” that is acknowledged and accepted by the European citizenry.

The value of employing the language of republicanism here comes into sharper relief when we consider how horizontal application has developed and is debated differently in the context of the European Court of Human Rights (ECtHR).Footnote ⁴⁴ The ECJ is just one body in the panoply of EU institutions. Indeed, the EU includes institutions that correspond to the classic three branches of government and, in this sense, mirror the form and function of the national governments of the various Member States. While the scope of EU governance may be limited, its institutions comprise a fully operative government, whose ultimate aim is unity and integration. In theory, EU actors, institutions, and even individual citizens could begin to conceive of the Union as a republic or, in Van der Walt’s terms, begin to attribute a measure of sovereignty to the Union. On the other hand, the ECtHR is an international court, belonging to no particular government and maintaining no project beyond that of addressing violations of those rights articulated in the European Convention of Human Rights. There is no associated legislative function, nor any encompassing project of unity. To this extent, the role of the ECtHR does not rival its Member States in the same sense as does the EU.Footnote ⁴⁵

In light of these differences in institutional character, horizontal application has figured into accounts of the ECtHR differently than in scholarship on and decisions of the ECJ. The question of horizontal application is less controversial for the ECtHR, perhaps because the Convention constitutes an agreement among states without any aspiration to govern the people within individual countries. And indeed, the question of horizontal application was not even raised when the Convention was drafted in 1950.Footnote ⁴⁶ While some provisions of the Convention do amount to a charge for national governments to protect their citizens from private harms, these ultimately remain charges to the national governments and do not obligate individual citizens.Footnote ⁴⁷

To the extent that horizontal application has republican qualities, it naturally figures more prominently in debates over EU law and politics than in ECtHR discussions. The relevance of republican concepts to EU debates, however, does not mean that the EU consists of sufficiently republican elements to make those concepts work. The ability of EU institutions to count on certain republican resources, such as an acknowledged common good and a self-identifying citizenry, seems, at least on a theoretical level, to be requisite to horizontal application.Footnote ⁴⁸ On the other hand, a certain endogeneity seems plausible here, as the ECJ’s increasing application of horizontality may itself cultivate greater republican resources across the EU. Notwithstanding lingering theoretical issues, the ECJ has moved gradually to develop its doctrine of horizontality, as the next section explains in greater detail.

The Horizontal Application of EU Law

How, then, have judges of the ECJ developed the concept of horizontal application, and how have scholars understood this practice in the EU? The foregoing sections explained some of the theoretical questions that arise from a republican understanding of horizontal application in the context of the EU, including how the idea of the EU itself measures up against republican principles and the unique challenges of viewing horizontal application in the EU through a republican lens. This section, in turn, examines jurists’ and commentators’ concerns and the resources they perceive to be at their disposal in shaping the development of horizontal application in EU law. In this way, the remainder of this chapter examines discourses – how EU jurists and commentators articulate the issues surrounding horizontality, and how they propose to develop horizontal application accordingly. Of course, some of the perspectives articulated in some ECJ decisions and scholarship are ambitious, viewing horizontal application as something that can be expanded, while others prove more hesitant and seek limits to this legal practice.

The initial jurisprudential development that set the stage for the debate over horizontal application came in the important Van Gend en Loos case (1963).Footnote ⁴⁹ Following the early treaties establishing the European Community, the relationship between European and domestic law was a real question and one that could not be avoided for long. In Van Gend, the ECJ declared its understanding of the kind of integrated community it would have Europe become, even while, on some accounts, the Member States envisioned a future wherein greater differentiation remained among states.Footnote ⁵⁰ In particular, the Court articulated the principle of direct effect, not to be confused with direct horizontal effect but rather what scholars and jurists today describe as “the capacity of a provision of EU law to be invoked before a national court.”Footnote ⁵¹ With the establishment of direct effect, litigants in domestic courts could rely on provisions of EU law against national governments. The consequence of this, then and now, is that European law could be introduced into what previously might have been a purely domestic legal-political situation. Moreover, the principle necessarily enlists domestic courts for the task of enforcing Treaty provisions and directives.

Insofar as Member States did not explicitly assent to this principle of direct effect, Alec Stone Sweet goes so far as to describe Van Gend en Loos as a “juridical coup d’état.”Footnote ⁵² On the other hand, the “teleological methodology” the Court employs in its judgment assumes an alternative, arguably republican, account of the European vision. Speaking of the Treaty establishing the European Economic Community (EEC), the Court explains that this was more than an agreement of obligations among contracting states, citing as evidence the Treaty’s preamble, which refers not only to governments but also to peoples. Indeed, the Court argues, the Treaty establishes EU institutions endowed “with sovereign rights,” the exercise of which affects both the Member States and their citizens.Footnote ⁵³ In this telling, the European Community was always intended to be a political community in the full sense. In this way, the Court seized upon an opportunity to entrench a more Eurocentric vision, later cemented in the Costa case, that declared the primacy of European law.Footnote ⁵⁴

The establishment of the direct effect of EU law was debated alongside the additional question of horizontal direct effect – whether EU law could be invoked by litigants in national courts against private individuals or nonstate actors. This was, in fact, a separate question and one that needed to be answered. However, even at this high level of abstraction, it became complicated very quickly for a couple of reasons. Despite instances in European law that refer to the actual people living in Europe, as the Court in Van Gend en Loos finds in the EEC preamble, foundational documents of Europe by and large address the states. The 2009 Charter of Fundamental Rights, for example, specifically states in Article 51 that it obligates the Member States. While this is not necessarily the last word on the question, it has factored into the Court’s reasoning on horizontal direct effect.Footnote ⁵⁵

The issue of whom the treaties and the Charter address, moreover, speaks directly to the questions elaborated in the previous section – namely, whether these foundational documents establish a European “public thing” sufficiently so as to hold the individuals within Member States accountable for EU commitments on the basis of their membership in that larger community. Perhaps Van Gend and later Costa gesture toward an affirmative answer here in that they are premised on the contention that European law is relevant and supreme even in the context of domestic questions.Footnote ⁵⁶ Nevertheless, one would still have to make the argument that private entities are immediate participants in the European project and, therefore, that European law is equally binding on their actions. Such a step seems almost prerequisite to the argument that European commitments and values “radiate” through all spheres of life, to use the language of Lüth.Footnote ⁵⁷

The Court first took up the issue of horizontal direct effect of EU law in Defrenne v. Sabena (1976).Footnote ⁵⁸ This case identified the principle of equal pay for equal workFootnote ⁵⁹ of the Treaty of the European Economic Community (now the Treaty on the Functioning of the European Union) as having direct horizontal application despite the fact that certain provisions of the Treaty formally addressed Member States. In this case, a woman named Gabrielle Defrenne was forced to retire from her job as an airline attendant since, under Belgian law, female flight attendants were required to retire upon turning forty. This policy, Defrenne argued, prevented her from collecting a pension equal to that of her male colleagues in retirement. The Court of Justice decided the case on the basis that the Treaty required equal treatment on grounds of gender. In particular, it argued that the prohibition of discrimination was “mandatory in nature”Footnote ⁶⁰ and so must apply to both state actors and private actors. Defrenne ushered in a broad discussion about horizontal application. Though the decision itself only established the possibility of horizontal application for treaty law, and only “mandatory” treaty provisions for that matter, this decision was enormously consequential. Indeed, those treaties comprising the fundamental commitments of the EU would now apply to private individuals within Member States. The words of the Court make clear the significance of this step. Speaking of the equal pay principle, the Court states:

The Court in Defrenne clearly understood the project of the European Community as being to propagate a particular kind of society. More to the point, it deemed the Community’s “social objectives” to be of such a nature that they necessarily impact entities beyond the state. While the Court did identify the limiting principle only to apply horizontal application for mandatory provisions, it ultimately established that the primary law of the EU has the power to create obligations for private actors within the Member States.

That European law comes in so many forms, as seen in Defrenne, complicates the question of what kinds of law may be applied horizontally to nonstate actors. EU law includes regulations, directives, treaty articles, and the Charter of Fundamental Rights. Such distinctions bear on debates over horizontal application, as scholars and jurists argue the significance of these differences – whether to limit the ECJ’s extension of horizontal application or to argue the ultimate arbitrariness of these distinctions and thereby extend its reach. Insofar as EU regulations are akin to ordinary law, they do not necessarily raise the same difficult questions with respect to horizontal application. Similarly, directives are legal acts of the EU that bind Member States. Whereas regulations are self-executing, however, directives require implementation, a fact which has resulted in their further debate. Traditionally directives have not been applied horizontally because Article 228 of the Treaty of the Functioning of the European Union states that Member States are bound by a directive and bound only to the extent that the directive specifies a particular obligation.Footnote ⁶² Nevertheless, the ECJ has carved out some exceptions to apply directives horizontally. For example, it has broadened the very concept of “the state” to incorporate what otherwise would be categorized as private actors,Footnote ⁶³ and allowed private individuals to hold Member States accountable when they fail to implement directives.

The fact of such distinctions suggests a general hesitance with respect to horizontal application.Footnote ⁶⁴ Indeed, beginning with Defrenne’s distinction between “mandatory” and other provisions, a similar tendency emerged to limit the reach of horizontal application in treaty law and the Charter of Fundamental Rights, areas in which the stakes are arguably even higher. Indeed, these two areas of EU law are effectively constitutional in nature. In contrast with regulations and directives, applying treaty law and the Charter horizontally would be a clearer movement (both symbolic and practical) toward increased integration and the primacy of EU commitments. It is thus unsurprising that Defrenne’s establishment of the horizontal application of treaty law was considered to be so groundbreaking. Indeed, even decades later, such scholars as Johann van der Walt have continued to worry about the horizontal application of treaty law.

While debates unfold in courts in terms of doctrinal technicalities, scholarship treats horizontal application as raising deeper questions as well. Even after Defrenne, the scholarly literature reveals disagreement about the constitutional implications of horizontal application, including the ability of the ECJ to define values and priorities for the entire Union and, more broadly, the ability of EU institutions to define values and priorities for the Member States. Johan van der Walt, for example, worries that the original formulation of horizontal application in the German FCC’s Lüth case overlooks the possibility for disagreement over the content and prioritization of values. When this logic was appropriated from German jurisprudence by the ECJ, there was room for debate not only about which institutions were making these decisions (courts or legislatures) but also about the very government determining these values (individual countries or the EU).

Van der Walt’s book focuses on the “Laval quartet” of cases, including the Viking (2007) case that determined that labor unions violated treaty provisions on freedom of establishment when they prevented the Viking shipping company from moving their legal base from Finland to Estonia.Footnote ⁶⁵ Following the reasoning in Defrenne, the horizontal application of a treaty provision controlled the actions of the labor union in relation to the shipping company. Though, in earlier cases, the Court established criteria requiring treaty provisions to be clear and precise if they were to be applied horizontally, Van der Walt sees Viking as based fundamentally on judicial fiat. In the ECJ’s rhetoric of “balancing” and “harmonizing” the opposing social and economic concerns at play in Viking, Van der Walt finds the Court making crucial and constitutive decisions that, he argues, ought to be beyond its jurisdiction as a court and, more specifically, as a court for Europe.Footnote ⁶⁶ He explains that the ECJ had no resources for balancing the right of the unions against that of the shipping company in a principled way. However, insofar as it did decide in favor of the shipping company, it yielded a “case specific prioritizing of market freedom” over bargaining rights.Footnote ⁶⁷ Not only is this result not desirable policy, as far as Van der Walt is concerned, but it is not a necessary interpretation of the Treaty. In deciding Viking, therefore, the Court improperly assumed authority to make such a constitutional decision. He thus describes the case as a “crucial moment in the federalization”Footnote ⁶⁸ of Europe, insofar as the ECJ, an EU institution, made a decision for Member States whose own institutions may have chosen, and in fact had chosen, to order and weigh these values differently.

The Viking case faced criticism from legal scholars when it was decided, many worrying about its apparent derogation of certain principles of labor law. However, the general practice of applying treaty law horizontally, Van der Walt’s primary concern, is basically settled in ECJ jurisprudence. In Van der Walt’s assessment of Viking, we find a Court making claims about the kind of community the EU is, as well as its status in relation to Member States. And indeed, the ECJ judgment follows what was a common line of thinking, especially early on in the Community’s history, that prioritized matters of economics and transnational exchange in line with the EU’s original purpose to facilitate the freedom of movement and economic cooperation.Footnote ⁶⁹

Initially, one may take this prioritization of economic concerns as a sign of humility and restraint since the EU, as represented by the Court, was not trying to be anything more than a Union committed to economic cooperation. Nevertheless, Van der Walt argues that Viking did more than simply prioritize economic concerns as a matter of EU law. Rather, with the development of direct effect, the Court subverted the right of collective bargaining to the right of establishment within Member States.Footnote ⁷⁰ Moreover, and more specifically, with the development of horizontal direct effect, the Court created duties of unions (albeit negative duties) not to obstruct companies’ choices to relocate, even if such choices came at the expense of those the unions were obliged to protect. This latter result not only intervenes to limit the actions of a state but also assumes the role of government of the people within states. In establishing certain public values for Europe and arguing the relevance of these values across spheres, the Court asserts a European res publica or “public thing,” to use the language of this book’s republican framework, claiming itself as a locus of constitutive political decisions.

Van der Walt’s solution to these concerns is simple in theory though more complicated in practice. He thinks that courts in general and the ECJ in particular should refrain from weighing in on these kinds of substantive value judgments. He suggests, instead, an emphasis on the procedural so that courts leave fundamentally political questions to legislatures and, moreover, to national institutions that may better appreciate any deep social and political divisions that exist within a state.Footnote ⁷¹ The key for Van der Walt, in other words, is that we continue to recognize difference, including different political communities among Member States, where it still exists. Van der Walt argues for this devolution back to national governance as helping to mitigate the feeling among political losers that they are subject to rules “foreign” to them and rules they cannot identify as “their own,”Footnote ⁷² a rationale admittedly in line with the priority of self-government in republican thought.

While Van der Walt was writing before the 2009 entry into force of the Charter of Fundamental Rights, his misgivings about the horizontal application of treaty provisions are largely applicable to the Charter, as well, insofar as both documents are considered primary law and constitutive for the EU. Eleni Frantziou, on the other hand, focuses on the implications of the horizontal application of the Charter specifically and follows Van der Walt in emphasizing the weightiness of the question of horizontal application for Europe. She states explicitly that “discussion of the horizontal effect of rights involves a deeper inquiry into the kind of society the EU is setting itself out to be and the values that lie in its core.”Footnote ⁷³ Moreover, Frantziou shares Van der Walt’s assessment of the way the Court has faced the choice to rank values in cases concerning horizontal application. Noting the Viking case in particular, she describes the confrontation between the values of a “laissez-faire market economy,” on the one hand, and the “radical, inclusionary impact” of collective bargaining and equal pay (as in Defrenne), on the other.Footnote ⁷⁴ Frantziou worries that in continuing to develop its doctrine of horizontal application, the ECJ will prioritize laissez-faire economic values at the cost of the EU’s more inclusionary project concerned with substantive equality.Footnote ⁷⁵ Nevertheless, Franziou’s solution is not to recoil from horizontal application, pace Van der Walt. Rather, after the adoption of the Charter, Franziou would have the ECJ take up these defining questions for Europe even more directly.

Frantziou’s amenability to horizontal application is rooted in her broader understanding of Europe as a community. Whereas Van der Walt continues to emphasize the Member States as the locus of politics and governance, Frantziou describes the EU as its own “polity” with its own common good.Footnote ⁷⁶ Her qualms concern not the practice of horizontal application itself but the prospect of the Court reducing it to a technical question and thus ignoring its normative (one might say, republican) potential. And indeed, the Court’s early decision on the question of horizontal application of the Charter, the 2014 AMS case, tended toward the technical.Footnote ⁷⁷ This case concerned whether Article 27 of the Charter, guaranteeing the rights of workers to information and timely consultation, could be applied horizontally. The Court considered but ultimately did not apply this Charter provision horizontally, reasoning that the provision was not specific enough to ground a rights claim. Put differently, it was not so specific as to keep Member States from making their own exceptions with respect to the information and consultation that workers receive in their places of employment. Thus, the Court decided against horizontal application in this instance while leaving open the possibility that a Charter provision might apply horizontally, if sufficiently specific and precise.Footnote ⁷⁸

Although, like treaty law, the Charter rises to the level of primary or fundamental law of the EU, the AMS case revealed continued uncertainty on the part of the Court in giving these rights horizontal application. Scholars such as Frantziou criticized the mechanical distinctions the Court adopted from prior decisions, such as the requirement that a provision be “mandatory” or sufficiently specific. Rather than subjecting these cases to mechanical and what she views as arbitrary limiting principles, Frantziou would have the Court engage the substance of these questions, accounting for “what these claims can mean for people’s lives” – for example, “seeing one’s child, being able to work free from discrimination and receiving a pension.”Footnote ⁷⁹ A meaningful answer to cases of horizontal application, she continues, will account for such things and determine “how much a particular society values them.”Footnote ⁸⁰

Frantziou thus argues that the ECJ should decide cases of horizontal application in light of these substantive values for the very reason that they contribute to “the kind of society the EU is setting itself out to be.” To do anything else would be to give the important issues short shrift or even blindly decide against inclusionary rights protections. In this way, she argues that the Court should engage, proactively, the very questions Van der Walt wants the Court to avoid. Frantziou recognizes the political nature of these questions and does think there should be some limit to the scope of horizontal application.Footnote ⁸¹ Nevertheless, she takes as given a postnational context, referring to Europe as its own society.Footnote ⁸² In her view, taking up the horizontal application of Charter rights is necessary to building up a European society, à la Habermas. Not only is Frantziou more optimistic than Van der Walt with respect to what horizontal application can accomplish, but she is also comfortable with what horizontal application may engender. Indeed, she understands horizontal application as itself a key question, offering answers in the larger debate about the hierarchy of EU values. For Frantziou, the outlines of political community, of res publica, have already been drawn, and what remains to be debated is exactly how Europe, its people and institutions, understands its own common good.

In November 2018, nearly a decade after the adoption of the Charter, the ECJ took the decisive step to give virtually all of the Charter horizontal application.Footnote ⁸³ The judgment in Bauer et al. actually concerned two separate cases, both involving women seeking compensation from their late husbands’ employers in lieu of annual leave not taken before their deaths. In support of their case, they cited Article 31(2) of the Charter, which states: “[E]very worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”Footnote ⁸⁴ In line with Frantziou’s own criticisms of the Court’s jurisprudence on horizontal application, the advocate general invited the Court to “reconsider previous categorisations based on general principles or ‘particularly important principles of EU social law’ … and to confirm, once and for all, that the social rights enshrined in the Charter are equally individual and fundamental as its other provisions.”Footnote ⁸⁵ In this way, the advocate general encouraged the Court to move beyond the privileging of economic and property rights over social rights and, more to the point, to recognize the complete range of the Charter as fundamental. Upon putting aside such distinctions, the Court affirmed that the Charter was “sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual.”Footnote ⁸⁶ In other words, there was no longer any need to render provisions more specific with additional legislation before considering their horizontal application; the Charter provisions could now be applied horizontally.

Later cases bring into sharp relief the complexity Europe’s legal pluralist environment poses for these questions. Specifically, the Right to Be Forgotten cases,Footnote ⁸⁷ decided by the German FCC in 2019, illustrate how greater integration may actually come simultaneously with the national institutions of Member States asserting their own authority.Footnote ⁸⁸ In these two cases, the German FCC considered the fundamental right in EU law to have private information removed from internet searches. Not only does this raise the horizontality question, specifically of the duties of internet search operators vis-à-vis individuals appearing in searches, but it brings to the fore the relationship between domestic and EU law, as well. Indeed, these cases constituted the first time that a national court interpreted for itself the Charter of Fundamental Rights. On the one hand, this is a clear sign of the development of European integration and buy-in on the part of national institutions. On the other hand, in so assuming this interpretive role, the German FCC also carved out for itself space to control the terms of integration.Footnote ⁸⁹ Indeed, the Court still maintained the priority of the German Basic Law in “matters not fully harmonized” with EU law.Footnote ⁹⁰ Moreover, the practice of proportionality review still allows ample interpretive space for the German Court to depart from the ECJ’s judgments as a practical matter, even while maintaining the appearance of accord.Footnote ⁹¹ So while these recent cases evince a republican parity of private actors with principles of higher law as well as conformity of German law with European rights commitments, one must note the complexity with which national institutions, such as the German FCC, continually engage with this development. Indeed, the FCC’s willingness (nay, eagerness) to assume a role in applying the Charter of Fundamental Rights highlights both the reality of something like a European res publica and the power of national institutions to shape its future.

Conclusion

In this supranational context, a republican understanding of horizontality calls for some European “public thing” or common good to justify the step of holding private entities within Member States accountable to EU values. Whereas one may understand horizontal application in national contexts as relying upon preexisting relationships among compatriots, some might describe horizontality in the EU as signifying the creation of new relationships and even individual duties across a supranational community. The application of horizontality itself answers larger theoretical questions about the European project in a certain way. Specifically, in taking the step of applying public values to private entities at the continental level, the ECJ assumes the existence of a European common good and the priority of this European good over national commitments. While one should resist assuming that the nature of the European project is a zero-sum competition for sovereignty between Member States and EU institutions, the practice of horizontal application tends to pit nations against the Union. To the extent the horizontal application of rights may elevate the values of the EU over those of Member States in individual cases, so too might a European “public thing” be privileged in legal, if not political, life.

As horizontal rights seek to bring private individuals into accord with public values, this book has argued that horizontal application constitutes a republican vein in constitutionalism. This republican character is evinced in two specific features of horizontal application. Briefly, the parity that horizontality establishes between public and private law and obligations resembles the republican ideal that the common good should govern a wider expanse of the polity, across public and private spheres. Moreover, out of this parity grow new constitutional duties for private actors, resembling the republican idea that people possess certain duties to one another by virtue of being fellow citizens.

While private law can also yield legal obligations for individual citizens and private entities in the traditional vertical model, these obligations accrue a different status when they come from the same source that yields and entrenches the duties of the state, namely, a constitution. Indeed, when judges cite the constitution, rather than statutory law or the common law, as the source of individuals’ duties, those duties become nothing less than demands of fundamental law. Thus, horizontality has, on the one hand, the symbolic or expressive effect of bringing more actors in a polity into the fold of its constitutional commitments. It also has the practical effect of entrenching individual duties as a constitutional matter. Indeed, in the same way that constitutional rights are meant to place certain questions above routine political processes, with horizontal application, individual duties come to exist and be enforced as a constitutional matter. Horizontal application thereby expands the function of a constitution and the scope of constitutional rights by altering the conceptual distinction between public and private on which constitutionalism is traditionally premised. Its novelty and power as a constitutional development should not be understated.

The Choice of Horizontality through the Republican Lens

Horizontal application may be a relatively new constitutional practice, but adjudicating the competing claims of private actors has long been an object of politics. More than a few recent episodes offer compelling illustrations of such conflicts and the tendency to invoke rights in debating them. These varied discussions reveal an inclination to employ the language of rights and duties across issues in our political (indeed, our moral) debates, regardless of the formal status of rights and duties as a legal matter. The ubiquity of such rights-and-duties talk likewise reveals the broad range of issues to which horizontality could potentially be applied as a formal matter, if it has not been already. In light of such inclinations toward this language in political discourse across the globe, the republican framework of this book offers new concepts to understand and examine the choice of whether to adopt formally a horizontal framework across these same debates.

Take the rise of Big Tech, specifically the role of these companies as gatekeepers of expression. Many users advocate for greater transparency about how social media platforms apply their community standards when monitoring user-generated content; some would even revise these private community standards altogether in favor of free speech and expression. Indeed, politicians and members of the public have sometimes invoked rights to argue that tech companies have duties under the constitution. Thus, rights and duties are clearly at play in some popular understandings of these private relationships.Footnote ¹ Moreover, the sheer power of Big Tech has led some constitutional actors and scholars to consider whether these companies should, in fact, be treated more like state actors than private actors for certain purposes. In the 2019 Right to Be Forgotten I case, the German Constitutional Court explained that sometimes these companies “take on a position that is so dominant as to be similar to the state’s position.” Under such circumstances, the Court argued, “the binding effect of the fundamental right on private actors can ultimately be close, or even equal to, its binding effect on the state.”Footnote ²

Perhaps the example of Big Tech is limited, however, for the very reason that the power of these companies can surpass even that of many nation-states. To call such companies “private” seems to understate important elements of their real nature and capacity. Other examples of conflict among private actors arise out of the COVID-19 pandemic. With the spread of this highly contagious disease came questions about what fellow citizens owe each other. Do individuals have a duty to stay home, even foregoing their livelihood in the process? To wear a mask in public? To get vaccinated? How would such duties stack up against rights not to wear a mask and not to get vaccinated? Are such duties contingent on the efficacy of each respective preventative measure? Again, the language of rights and duties suffused the discourse surrounding the pandemic, evincing the appropriateness of using a republican lens to consider such questions. Much controversy arose in choosing how to assign rights and duties to various actors as a practical matter. Not only individuals but also entire political communities have decided these matters differently.

The global experience of COVID-19 shows clearly our interconnectedness and brings home the inescapable need to adjudicate conflicts between private parties. More fundamentally, these examples illustrate the choices political communities must make about whether to “extend rights’ reach”Footnote ³ to adjudicate disputes in certain corners of the private sphere. Should private spaces perhaps be governed by constitutional norms in some cases but not others? If a private actor might have some duty in upholding a public commitment, such as to a particular constitutional right, then we find ourselves on very different constitutional terrain than that of traditional understandings. Indeed, constitutional rights come to acquire different meanings and engender different relationships.

Horizontality is but one means among many to approach conflicts among private actors. Constitutional actors may seek to govern certain private relationships through antidiscrimination statutes or directive principles and may accomplish as much or more through these mechanisms than they would through horizontal application. The present project does not, however, concern primarily constitutional development or outcomes. Neither is the point to argue that horizontality is generally good or generally bad, or to show that horizontality is effective or ineffective on any particular issue. Instead, the republican lens helps us see how actors adopting and employing horizontal application debate an ever-broadening set of issues, offering a new and arguably fuller view of the theoretical potential of this practice. The hope is that this analysis equips scholars and constitutional actors alike to understand horizontal application better on the level of discourse and theory, as a foundation for making coherent and effective decisions.

How we choose to structure our discourses is itself a substantive moral and political choice, independent of the question of outcomes. Should conversations about the duties we have to each other be rooted in the constitution, as Indian and South African justices have argued?Footnote ⁴ Or ought the concept of constitutional duties be reserved to describe the obligations of state actors as in the United States?Footnote ⁵ Do we want to talk about the constitution as a moral yardstick for the broader polity as Sommeregger speaks of the German experience,Footnote ⁶ or assess the kind of community we are by our willingness to hold private actors to public standards, in keeping with Frantziou?Footnote ⁷ Or should civil society and federal structures enjoy space to operate as sources of value themselves and wrestle with some of these questions independently?Footnote ⁸ The republican lens illuminates which of these concepts and questions most accurately capture what we mean to say in our law and politics. In a word, the republican lens offers scholars and practitioners additional tools of analysis to uncover the theoretical, even moral, implications of horizontality in particular contexts.

Whither Horizontality?

When should constitutional actors consider adopting horizontal application? Of course, all the typical political factors of partisan interests, institutional capacity, and the like figure into the decision. But we might also contemplate this question within the domain of normative theory. Horizontality, understood in republican terms, reveals a shift in the way constitutional actors discuss rights – away from rights as individual claims against state actors toward rights as encompassing certain ends of the community. Constitutional actors might opt to revise the rights-centricity of traditional understandings in the context of commitments they deem most constitutive, least negotiable, or somehow more susceptible to private power. Rights then come to exist among a plurality of other constitutional commitments and sometimes even yield to those other commitments. Out of this understanding, the possibility of constitutional duties for more actors, even private actors, emerges naturally. Parity and duty fall more in line with interpretations of the broader constitutional project than traditional understandings. Among transformative constitutions, we should expect fewer limits to horizontality and perhaps even horizontality written into the constitution itself.

Apart from any outcomes constitutional actors seek through horizontality, the rationale for the approach may rest in a kind of symbolic or expressive value in bringing all actors and spheres of society under the same standard.Footnote ⁹ In some cases, constitutional actors truly want to distinguish the sources of obligation in public and private spaces and admit legislative discretion according to a vertical model; they may seek space for autonomy and license over and above any concerns for parity and without the language of duty. In other cases, certain particularities in the historical record or in constitutional aspirations are cause to pursue a tighter connection between private actors and public values.

As the preceding chapters showed, horizontal understandings have emerged as a response (even a corrective) to such major atrocities as those of the twentieth century – from genocide to deep-seated systems of racial violence. To construct a flourishing society in the wake of such social devastation may call for broad and more direct ownership of the good of the community and duties among citizens. Again, different legal structures achieve some of the same results, but the particular way that horizontality derives the duties of citizens from public commitments offers a degree of proximity to the common good in response to historical circumstances. Horizontality is not an expression of collective guilt but rather a tool wielded by actors seeking to confront a kind of diffuse social inheritance in order that their polity may outlive it. Slavery in the United States, caste and religious discrimination in India, genocide in Germany and Europe more generally, Apartheid in South Africa – each society considered here has a past that persists in the present, with which constitutional actors must grapple. As this book has shown, constitutional actors in each place have at least contemplated horizontality in overcoming social disharmony and have invoked republican concepts of rights and duties, fraternity, and the common good in the process. And indeed, this book’s republican lens will be continually apposite as long as constitutional actors contemplate horizontality’s meaning and appropriateness in their respective contexts.

Making Horizontality More Republican

That horizontality tends to increase the understanding of freedom as nondomination and shift the larger society toward certain public values seems relatively straightforward. Horizontality aims to bring public ends to bear on private spaces. We should ask, however, whether horizontality’s kinship with certain republican principles – notably, the common good and duty – calls for more thoroughgoing republican processes to accompany its establishment. Put differently, some might find in these republican aspects of horizontality a call to provide more fully for republican principles, perhaps contemplating the role different, more representative governing institutions should play in shaping horizontality.

Eoin Daly and Tom Hickey structure their book on republican constitutionalism in the Irish context around three themes: a republican understanding of freedom, republican institutions, and the cultivation of a broader republican society, as through education.Footnote ¹⁰ And indeed, we may locate horizontality among these broad strokes of republican constitutionalism. Moreover, considering how horizontality fits within these elements of republican constitutionalism uncovers possibilities for making this practice more republican. How to square horizontality with democratic articulations of republican freedom and representative institutions, for example, may be confounding. While horizontality might be understood as a democratizing effort in the sense that it brings the entire legal system under the will of the people as articulated in the constitution, it also tends to leave less to the jurisdiction of ordinary law and lawmaking. The very purpose of horizontality may be described as to constitutionalize duties in the same way rights are typically constitutionalized. Some might conclude on this basis that courts will necessarily play an outsized role.

This need not be the case. Although horizontality constitutionalizes the private sphere, legislative powers and even the general public may – and arguably must – participate in constitutional conversations. In the words of US Chief Justice John Marshall, “[W]e must never forget that it is a constitution we are expounding,”Footnote ¹¹ which is to say that constitutions are always subject to interpretation and always involve some element of politics, albeit politics of a higher order. For these other realms to participate more actively in debates concerning the obligations of private actors may well elevate the discourse. Perhaps the new commonwealth model that Stephen Gardbaum identifies in many countries provides an answer by carving out space for both legislatures and courts.Footnote ¹² Even while courts would inevitably maintain some special role in adjudicating individual cases, to have more institutions and more people participating in these constitutional conversations would certainly make this practice more consistently republican, balancing the resulting parity and duties with new levels of self-government in the practice of horizontality.

Buttressing the participation of plural government bodies and the general public in these conversations may also go some way to assuage the fears of those who worry about the “crumbling public/private divide” and the ways in which something like horizontality might be abused.Footnote ¹³ Indeed, as worries about homogenization have sometimes been leveled against republicanism, so such worries also rear their head in debates over horizontality. As Gary Jacobsohn explains:

While critics do not often go so far as to call horizontal application “exclusivist, discriminatory, or communalistic,” their assessments track similar concerns about the homogenization of private and public, as well as the prioritization of public commitments at the expense of the individual. Incorporating more voices, especially voices that republican theory typically identifies as more connected with the people, might better ensure that these decisions are carried out on the people’s termsFootnote ¹⁵ and thus hedge against these darker possibilities.

In the mere act of adopting a constitution, a polity commits to certain principles and, to this extent, cannot pretend to be neutral. Although these norms may be applied in private spaces in both a vertical and a horizontal model of rights, these two models engender different narratives about the relationship between citizens and the “public thing” that is created by the constitution. The traditional vertical model permits a level of detachment so that even if legislation regulates private actors, these actors need not themselves assume constitutional duties. On the other hand, polities who pursue horizontal application do not rest content with the “light touch”Footnote ¹⁶ of the vertical model in maintaining and applying constitutional commitments. Ultimately, this comes down to prudential questions of constitutional design in meeting the goals a polity sets out for itself. How to conceive of the relationship between public and private actors – whether in more traditional or republican terms – rises to a level of high constitutional politics. In some instances, what Sommeregger calls “value monism” might be unnecessary or imprudent. In other cases, conventional understandings of rights may come up short, making necessary something like the republican logic of horizontality to enable the discourses to continue in a way that benefits each polity. Whatever the case, constitutional actors and scholars would do well to engage in such discourses with a historical and theoretical knowledge of republicanism and its echoes in the issues of their day.