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1、HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS RETHINKING THE STRUCTURES OF CONSTITUTIONAL DEMOCRACYJohan van der Walt* Professor of Law, University of Glasgow.“Entscheidend ging es jedoch sowohl der Dclaration als auch der deutschen Grundrechtsdoktrin darum, da es der Staat, vor allem der Gesetzgeber
2、, war, der die Freiheitssphre auch im privaten Recht zu sichern hatte.” Klaus Stern Staatsrecht III/1, 1516.I INTRODUCTIONVolume III/1 of Klaus Sterns Staatsrecht der Bundesrepublik Deutschland introduced me to German Drittwirkung or horizontal application jurisprudence. It is in this volume of Ster
3、ns monumental work on German public law that I read in 1999, as a Humboldt Scholar under Klaus Sterns hospitable Betreuung, that the horizontal application of fundamental rights or Drittwirkung der Grundrechte always confronts the judiciary with the problem of two competing or conflicting fundamenta
4、l rights. When one party in a private legal conflict deems it fit to articulate a legal claim in terms of a fundamental right, the other party will invariably be able to do the same. Stern puts the matter as follows:“Die Besonderheit dieser Konstellation liegt darin, da hier die Privatrechtssubjekte
5、 prinzipiell beide Grundrechtsberechtigte sind; entfalten in diesem Verhltnis die Grundrechte Wirkungen derart, da hierdurch der eine gegenber dem anderen Beteiligten geschtzt wird, so kann dies zugleich eine Beeintrchtigung der grundrechtlichen Freiheit des anderen beteiligten Privatrechtssubjekts
6、bedeuten. Die Grundrechte wrden daher in diesen Verhltnissen fr alle Beteiligten gleichzeitigt zu Rechten und zu Pflichten fhren.” Klaus Stern, Staatsrecht III/1 (Mnchen, C H Beck, 1988) 1513.“The specificity of this constellation lies in the fact that the private law subjects involved in the disput
7、e are in principle both bearers of fundamental rights; when the fundamental rights relationship between the parties is such that the one partys fundamental rights are protected against the other, the other can also claim that such protection would, in turn, abridge his fundamental rights. The fundam
8、ental rights would therefore in this case imply rights and duties for all parties involved.”The conflict of fundamental rights that Stern describes here portrays a structural complexity at the heart of horizontal application jurisprudence. One of the dexterous ways by which legal theory has all alon
9、g sought to sidestep this complexity was to deny that horizontal application involves a clash of fundamental rights in the way Stern describes it in this passage. In German literature it was especially Jrgen Schwabe who insisted persuasively on the “so-called” or “sogenannte” status of horizontal ap
10、plication. Horizontal application, according to Schwabe, was a non-issue or pseudo-problem; in the final analysis it is always the state and not the private individual that is the real object of constitutional review. Jrgen Schwabe, Die sogennante Drittwirkung der Grundrechte. Zur Einwirkung der Gru
11、ndrechte auf den Privatrechtsverkehr (Mnchen, Wilhelm Goldmann, 1971) 9-25. Schwabes view can be said to have triumphed in the jurisprudence of the German Federal Constitutional Court (Bundesverfassungsgericht, hereafter referred to as the GFCC) when the GFCC commenced to emphasise the duty of the s
12、tate to protect and guarantee the fundamental rights of citizens as the heart of its “horizontal application” jurisprudence. 39 BVerfGE 1; 46 BVerfGE 116; 49 BVerfGE 89; 77 BVerfGE 381; 88 BVerfGE 205; 96 BVerfGE 56.And strictly speaking, the view that it is always the state and never the individual
13、 that figures as the object of constitutional review, was all along quite evidently already embodied in the epochal Lth case which precipitated the GFCCs horizontal application jurisprudence in 1957. Already in Lth does one encounter the crucial formula that the GFCC would use almost invariably in i
14、ts later judgments. It is not the individual that abridged the right of the constitutional plaintiff (Verfassungsbeschwerde), but the trial court that failed to interpret and assess his fundamental rights correctly. This is the way the GFCC phrased the matter in Lth:“Das Bundesverfassungsgericht ist
15、 auf Grund dieser Erwgungen zu der berzeugung gelangt, da das Landgericht bei seiner Beurteilung des Verhaltens des Beschwerdefhrers die besondere Bedeutung verkannt hat, die dem Grundrecht auf freie Meinungsuerung auch dort zukommt, wo es mit privaten Interessen anderer in Konflikt tritt. Das Urtei
16、l des Landgerichts beruht auf diesem Verfehlen grundrechtlicher Mastbe und verletzt so das Grundrecht des Beschwerdefhrers aus Art 5 Abs 1 Satz 1 GG.” 7 BVerfGE 198, 230 emphasis added. The court relied on this wording again and again in subsequent judgments. See 24 BVerfGE 278; 25 BVerfGE 256; 30 B
17、VerfGE 173; 34 BVerfGE 35 BVerfGE 202; 42 BVerfGE 142; 46 BVerfGE 325; 54 BVerfGE 129; 54 BVerfGE 148; 60 BVerfGE 234; 61 BVerfGE 1; 62 BVerfGE 230; 66 BVerfGE 116; 73 BVerfGE 261.“The decision of the Regional Court failed to recognise the significance which the right to freedom of expression enjoys
18、 also in those cases where it comes into conflict with private interests. As such it fell short of constitutional criteria and must be deemed to have violated the fundamental right which the plaintiff enjoys in terms of article 5 I.”Considering the Schutzpflicht jurisprudence of the GFCC and this fo
19、rmula that it coined in Lth, Schwabe would appear to be correct. Ultimately it is always the state, some state action or ommission, that constitutes the object of constitutional review, also when the conflict that necessitated the review has its origins in private legal relationships. This concessio
20、n to Schwabe does nevertheless not mean that Sterns asessment of Drittwirkung in terms of a conflict between fundamental rights is incorrect. One of the points that I will be stressing in this essay is that Stern is in fact correct, but at a much more fundamental and somewhat different way than is a
21、pparent at first glance. The special nature (Besonderheit) of Drittwirkung, I shall argue, consists in the way it reminds us that all constitutional review concerns a conflict between two fundamental rights. And this reminder, I shall argue further, is a crucial point of entry for a much needed reth
22、inking of the fundamental structure of constitutional democracy in the era of increasing supra-statal governance evident in contemporary Europe and elsewhere in the globalised world. And Sterns view regarding a conflict of fundamental rights, we shall see, goes to the heart of the structure that is
23、at issue here. My argument will proceed in four steps. Section II will briefly expound an analysis of American state action jurisprudence. The point of this exposition will be to point out the close correspondence between Schwabes state oriented approach to Drittwrikung and the state action jurispru
24、dence of both the United States Supreme Court and prominent American legal theorists. Section III will contrast the state oriented understanding of constitutional review evident in the state action doctrine with the significantly different understanding of “constitutional review” prevalent in France
25、, in terms of which the state is the subject and not the object of constitutional review. This contrasting comparison between American and French constitutional theory and practice will serve as a hermeneutic background for an engagement with a crucial point that Walter Leisner made in his epochal c
26、ontribution to the German Drittwirkung debate. Leisner, Grundrechte und Privatrecht (Mnchen, C.H. Beck, 1960). As will become clear towards the end of Section III, Leisner espoused a typically French understanding of “constitutional review” in terms of which the state is not the primary suspect of c
27、onstitutional transgressions, but quite to the contrary, the primary guarantor of the constitution and constitutional rights. Leisner forwarded this view to make a crucial point in his theoretical analysis of the Drittwirkung problematic: Constitutional review is primarily concerned with the review
28、of private power, and not just anomalously, secondarily or indirectly so, as Drittwirkung jurisprudence has pervasively come to maintain in the wake of Jellineks emphasis of the Staatsrichtung of constitutional review. Leisner, we shall see, quite evidently viewed private power, not public power, as
29、 the primary threat to constitutional rights. The view of the state as the primary guarantor of constitutional rights instead of the primary suspect of constitutional violations can be argued to have gained new significance in the wake of the GFCCs Lisbon judgment in 2009. That private power and the
30、 subversion of public power by supra-statal governance have come to constitute more significant threats to constitutional rights than state conduct in the era of globalisation, has been observed by many European legal theorists in the wake of the Viking, Laval, Luxembourg and Rffert judgements of th
31、e European Court of Justice (ECJ) in recent years. Section IV engages with the positions taken by the GFCC and ECJ in these cases against the background of the arguments developed in Sections I to III.Section V concludes this essay with a number of reflections on how one might reconceive constitutio
32、nal democracy in view of insights gained from Sections I to IV. What this essay as a whole hopes to convey with the thoughts developed in Sections I to V can provisionally be summarised as follows: The Drittwirkung question invites legal theory to return to and rethink the original raison dtre of th
33、e constitutional state in a time that has largely come to forget and suppress this raison dtre. The result of this suppression and forgetfulness is unsurprising. We live in a time of rampant private freedoms, glaring inequalities, and indistinct private/public modes of governance that threaten to di
34、splace public spheres and democratic accountability in just about all walks of life. The banking industry has in recent months and years come to demand entitlement to unimaginable sums of public money simply because they are “to big too fall”. This is a startling example, but just one of many that r
35、eveal the extent to which the power of contemporary constitutional democracies have come to be displaced by conglomerates of power that increasingly render the public-private distinction meaningless. This development may well be signalling the emergence of forms of power akin to pre-modern feudal po
36、wers that united the capacities of dominium and imperium. This is a point that legal theorists must ponder incisively today. A radical reflection on Drittwirkung, the state action doctrine or the horizontal application of constitutional rights provides legal theory with a crucial opportunity to do s
37、o.II THE AMERICAN STATE ACTION DOCTRINEThe American State Action doctrine has its origin in a dictum of Justice Bradley in the majority opinion of the court in the Civil Rights Cases. This is how Justice Bradley put the matter:“In this connection, it is proper to state that civil rights, such as are
38、 guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by the State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a
39、private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under the State authority, his rights remain in full force, and may p
40、resumably be vindicated by resort to the laws of the State for redress. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and denial o
41、f rights, which it denounces and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights for which the States alone were or could be responsible was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided
42、 must necessarily be predicated upon that wrong. It must assume that, in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.” 109 U.S. 3 (1883) at 17.The reasoning embodied in this dictum enabled the United States
43、 Supreme Court to develop an extensive jurisprudence according to which it was constitutionally unobjectionable for private individuals to discriminate against others on the basis of race; hence Charles Blacks famous description of the state action doctrine as “the last unexpunged clause of Americas
44、 long settled gentlemans agreement about racism”. Charles Black Jr. “State Action, Equal Protection, and Californias Proposition 14” (1967) 81 Harvard Law Review 79, 109. This gentlemans agreement, however, no longer seemed so gentlemanly when the Supreme Court had to decide the epochal case of Shel
45、ley v Kraemer in 1948, and the court did its best to break out of it. The disputes in Shelley turned on the question whether the judicial enforcement of restrictive covenants between private individuals constituted Missouri state action that was subject to review in terms of the 14th Amendment of th
46、e United States constitution. The Court decided that it did, thereby exploding the state action doctrine. If judicial enforcement constitutes state action, the existence or non-existence of state action can no longer be an interesting or significant question for the judiciary to consider, for this v
47、ery consideration would as such already constitute state action. Had Shelley remained good law in all respects, it surely would have terminated the state action doctrine, but the Supreme Court subsequently restricted Shelleys applicability severely enough to keep or restore Americas “gentlemans agre
48、ement”, irrespective of how unsavoury this agreement had become for many. The explosion of the state action doctrine in Shelley could have been a watershed moment in American law, but it turned out to be nothing but a momentary hiccup, as will soon become clear. Shelley was not the only case that ca
49、n be said to have exploded, albeit again only momentarily, the state action doctrine. Two other Supreme Court cases are also noteworthy in this respect, the most prominent of which is the 1963 case of New York Times v Sullivan. 376 US 254 (1963). In Sullivan, Justice Brennan accepted without much ado that defamation law embodied in the common law of the state of Alabama constitutes state action for purposes of
