The Horizontal Effect Revolution and the Question of Sovereignty

Johan van der Walt

• Publisher: De Gruyter
• Year: 2014
• Print ISBN: 9783110248029
• eBook ISBN: 9783110391701
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the "horizontal" effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts "established" boundaries between Member State and Union competences in question. This book takes issue with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate on Drittwirkung that horizontal effect cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to horizontal effect.

Part One: Horizontal Effect

Chapter One:
Erased Baselines and Inversed Coordinates: 19^th Century Backgrounds of the Horizontality Question

I Introduction

The political imagination of America and Europe was captured by an unprecedented spirit of radical change and revolution towards the end of the eighteenth century. Hannah Arendt argues that the two revolutionary sprits were fundamentally different. Whereas the French Revolution was fuelled by a moral concern with equality and compassion with the poor, the American Revolution was fuelled by the ideal of political freedom. The ideal of political freedom, she contends, was not only concerned with liberation from the British Crown. It was also and fundamentally informed by the ideal of public freedom, the freedom to partake in political action. “Positive freedom” Isaiah Berlin would come to call the concern at issue here, contrasting it clearly with negative freedom, freedom from external constraints.³² The latter freedom, freedom from any kind of external interference with one’s life, is the essence of private liberty. Seen from this perspective, the American revolutionaries, or at least some of them, had much more than private liberty in mind when they rebelled against the Crown. According to Arendt’s somewhat romantic vision, they were and wanted to be men of action who took charge of their own affairs not just for the sake of their own affairs but for the sake of taking charge.³³

Not all of the American revolutionaries were so public minded though. There was ambivalence in the revolutionary spirit that also accommodated a strand of thinking that was indeed intent only upon establishing stable forms of government under the auspices of which private liberty could flourish. Simplifying matters somewhat, one can distinguish in this regard between the Adamsonian and Madisonian lines of thinking. The former stressed the ideal of public freedom; the latter stressed the ideal of stable government that would foster private liberty. Nineteenth century American legal history tells the story of how the latter gradually gained the upper hand over the former. The state action doctrine, coined in 1883 in the Civil Rights Cases, was not just about the relation between federal and state governments, as Justice Bradley suggested in the majority opinion of the court. And it was not just about racism, as Charles Black would later suggest.³⁴ It was surely also very much, perhaps more than anything else, about entrenching the Madisonian vision of minimal politics and maximum private autonomy in American law. In fact, the racist elements of the state action doctrine, which surely existed, became possible because of the way they dovetailed with the Madisonian ideal of private liberty.

Sections II and III of this chapter relate two narratives that tell the tale of the historical victory of the Madisonian over the Adamsonian conception of freedom in striking fashion. The first narrative concerns the transformation of the institution of property in American law from a minimal concern with a basic condition for political participation to a maximal concern with private autonomy. Section II relates this narrative with reference to the work of Jennifer Nedelsky³⁵ and Elizabeth Mensch.³⁶ The second narrative concerns the transformation of American law that took place in the development that Duncan Kennedy calls “the rise of Classical Legal Consciousness.”³⁷ This transformation is also related in Morton Horwitz’s account of the transformation of American law between 1780 and 1860.³⁸ Paul Atiyah’s account of the “rise of freedom of contract” is the classical statement of a parallel development in English contract law.³⁹ Section III brings to the fore key aspects of the historical development related in the work of Kennedy, Horwitz and Atiyah regarding the “rise of classical legal consciousness” and “freedom of contract.”

Sections IV and V then turn to two accounts of 19^th century German law that echo the American narratives of Nedelsky, Mensch, Kennedy, Horwitz and Atiyah in significant respects. Section IV highlights key points of Walter Leisner’s account of the historical development of German constitutionalism during the 19^th century. Leisner’s account of the history of German constitutionalism portrays a privatisation of constitutional rights in 19^th century Germany that echoes the privatisation of constitutional rights in 19^th century America in significant respects. Leisner’s narrative of the reduction of the broad concern with political liberty prevalent at the time of the French Revolution to the narrow conception of economic liberty that ultimately prevailed in the Paulskirche constitution of 1848 surely echoes the American narrative that Nedelsky and Mensch relate. Section V turns to the rise of conceptualist jurisprudence or Begriffsjurisprudenz in 19^th century German private law theory in the work of the German Pandectists. This development reflects the German counterpart of the “rise of classical legal consciousness” and “freedom of contract” that Section III related with reference to Kennedy, Horwitz and Atiyah.

The aim of all the historical narratives in this chapter is threefold. The first concern is, as already stated, to show how a broad concept of political liberty made way for an economical concept of liberty in the course of the 19^th century in both America and Germany. The second is to show that this reduction of political to economic liberty created an abstract concept of legal subjectivity that deliberately ignored all elements of historical and social context in legal relationships. This abstract legal subjectivity surely reflected the liberation of the legal subject from the historically entrenched hierarchies of feudal Europe and feudal law. The emancipatory potential and quality of this abstract legal subjectivity can therefore not be denied. However, once removed from the shackles of historical feudal hierarchies, this abstract legal subjectivity would become the source of new social stratifications and new social hierarchies that could henceforth claim to be exempted categorically from all historical and contextual social scrutiny, given that abstraction from context and history had become an emancipatory virtue with self-evident legitimacy. Thus could classical legal consciousness maintain the “legitimate” reduction of law to the facilitation of abstract will-formation that deliberately ignored baseline political and historical conditions and considerations.

A regard for this depoliticising and de-historicising process of conceptual abstraction brings into sight the third and main concern of this chapter. Under cover of the normative abstraction performed by legal conceptualism, formalism or Begriffsjurisprudenz, new social hierarchies could develop and entrench themselves “surreptitiously,” at least as far as legal theory and doctrine was concerned. These social hierarchies, however, did not manage to entrench themselves “surreptitiously” outside circles of scientific legal theory. Rising social discontent in the course of the 19^th century attested to tangible oppression and patent deprivations of liberty that surely rendered this entrenchment of new hierarchies conspicuous enough. But they, these hierarchies, enjoyed the advantage of a conceptually acute but empirically blind Iustitia under cover of which “innocent” or “neutral” business could carry on as if it had no bearing on the social and political questions of the time. The question whether Iustitia’s symbolic blindness, her impartiality, was in fact only possible and credible by virtue of acute percipience of social historical conditions, was a question that legal theory and doctrine would only begin to ask in the twentieth century.

This then was the 19^th century framework of private law that eventually came to precipitate the horizontality revolution in twentieth century constitutional review and constitutional theory. It was a framework that promoted the development of unprecedented social hierarchies and social inequality under cover of legal doctrine and jurisprudence that adhered strictly and exclusively to conceptualist or abstract conceptions of social equality. In terms of this framework, private law relationships were held to be horizontal. Unlike the vertical relationship between citizens and state or citizens and public authorities, private law relationships were considered relationships among equals. This dogma not only turned on the programmatic erasure of baseline questions from the attention of legal doctrine, it also turned on an inversion of the core coordinates of law that informed the Enlightenment imagination and symbolism of the revolutionary generation towards the end of the 18^th and beginning of the 19^th century. This revolutionary imagination considered political relations to be fundamentally equal. Political relationships, held the revolutionary credo, tolerate no natural or metaphysical hierarchy or authority that command unquestioned respect. As such they also demand that private inequality play no role in political authority. In fact, they ideally demand that private inequality play no significant role in any social relationship. As we shall soon see towards the end of this chapter, the revolutionary generation designated to the state the political responsibility to destroy the social inequalities that previously passed under claims to royal and feudal privileges. By the end of the 19^th century however, social elites could again rely on law to preclude public scrutiny of private inequality and, moreover, could rely on law to focus on public authority as the only real threat to liberty and social equality.

Public relations thus again became “vertical” towards the end of the 19^th century, as if the great democratisations of early modernity had never happened. And thus could private relations plausibly come to present themselves as horizontal. The nineteenth century framework of law that informed the horizontality revolution in the twentieth century thus pivoted on two fulcrums: Erased baselines and inversed coordinates. This historical background requires careful reflection on the terminology that has come to be associated with the application of constitutional rights in the sphere of private law. When one refers to the application of constitutional rights to private relations as the horizontal effect of constitutional rights, one surely cannot claim to denote the application of constitutional rights to horizontal relations. One can at best claim to denote the application of horizontalising norms to vertical relationships.

Constitutional rights are the last vestiges of the great discourse of horizontality and horizontalisation that the epochal revolutions of modernity bequeathed to modern societies. If these rights were to apply meaningfully to anything, they would logically have to apply to something that is at odds with or in tension with the horizontality that they embody. They would apply to some instance of social verticality, that is, to some manifestation of social hierarchy, irrespective of whether the manifestation of hierarchy at issue marches under the banner of public authority or entrenched private wealth. And their application would logically imply horizontalisation. Constitutional theory and language would gain miles of consistency if this simple principle would become and remain clear: The horizontal effect of constitutional rights concerns the horizontalising application of constitutional rights. This is the core contention that this chapter seeks to elaborate.

II The Privatisation of Constitutional Rights in America

James Tully argued in 1980 that Locke’s political philosophy was, unlike the voluntarist philosophy of Hobbes, fundamentally inspired by the Thomist notion of the suum. The third pillar in the triad of life, liberty and estate that constituted the core of Locke’s political theory, contended Tully, was not an expression of property in the modern sense of the word. It was an expression of the suum, the essential means to which every individual was entitled for purposes of sustaining life and limb.⁴⁰ Richard Tuck forwarded a similar interpretation of Locke in 1979.⁴¹ It is doubtful, however, whether Tully and Tuck’s interpretations of Locke conclusively trump C.B. Macpherson’s 1962 contention that Locke’s political theory was as much an expression of possessive individualism as that of Hobbes.⁴² It is more likely the case that Locke’s understanding of property was deeply ambiguous and that Tuck, Tully and Macpherson simply teased out two different strands in Locke’s thinking that were deeply at odds with one another.

Seeing the matter in this way would offer us a clue as to why the American revolutionary imagination allowed both the Adamsonian and Madisonian fractions to compete for the soul of the American nation. The concept of property that Locke bequeathed to the American Revolution was simply ambiguous enough to allow for both these lines of constitutional thinking. And this ambiguous Lockean legacy would also explain why the common law concept of property was capable of the transformation or mutation that it went through in the course of the nineteenth century without being left behind like an empty shell or breaking apart completely. The common law concept of property all along sustained a semantic ambiguity that would allow it to serve quite different social ideals in different times. We turn to the nineteenth century transformation of American common law in the next section. Let us first ta...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Author Notes
• Preface
• Contents
• Acknowledgements and Disclaimers
• Introduction
• Part One: Horizontal Effect
• Part Two: Sovereignty
• Bibliography
• Abbreviations
• Index of Persons
• Subject Index