CONCLUSION

In the previous chapter and this, I have discussed two archetypal models that depart from default verticality and apply constitutional rights to non-state parties. I have argued that both these models remain wedded to one or more of the foundational assumptions underlying default verticality.

The first model - functional equivalence - is focused upon how to ‘attribute' a private party's composition or conduct to that of the state. In doing so, it continues to operate under the framework of the unitary, centralised conception of sovereignty that has characterised how we understand the state.

The second model finds state action - through commission or omission - within private law and private orderings. In doing so, however, it leaves the struc­ture of private law or orderings untouched, and simply substitutes the state with the private rights violator. In practice, this means that it continues to view these private parties as operating within the same horizontal plane, where they face each other as abstract equals (and therefore have competing rights that need to be balanced against each other). This is known as the ‘transplant problem'. Furthermore, and separately, as the state does not have rights that need to be ‘balanced' against that of the private party, the principles used in determin­ing when a state has (or has not) justifiably limited a right are fundamentally distinct from those that apply to a relationship between two private parties, both possessing rights and responsibilities of their own.

While the ‘transplant problem' is not insurmountable, there are other issues - such as the mischaracterisation of the private relations, and a continued attach­ment to default verticality's account of sovereignty - that suggest that even in its strongest form, indirect horizontality might not be the complete answer to the problem that I have identified.

It is here that both the archetypal models that I have discussed, for all their shortcomings, also provide valuable insights. As discussed in the previous chap­ter, on the one hand, one manifestation of functional equivalence asks whether the private body is capable of affecting rights in a relevantly similar fashion to the state. Importantly, this places the rights bearer and her interests at the centre of the story. On the other hand, indirect horizontality’s insistence that putatively ‘private’ relationships always have an element of state involvement, as well as the ‘transplant problem’, alerts us to the importance of analysing such relationships against the background context that gives them their force and meaning.

As we shall see, both these insights form a crucial part of contemporary scholarly accounts of bounded horizontality, the subject of chapter four. While arguing that those existing models fall short in certain important respects, I also intend to use both the above insights as building blocks to develop the institu­tional approach towards horizontality (chapter five). The institutional approach argues that often, the character of ‘private’ relationships cannot be understood without understanding that they are embedded within social structures and institutions. Private parties’ respective locations within these structures take them out of the ‘horizontal plane’ that is the basis of default verticality, and place them instead in positions of enduring and entrenched advantage or disad­vantage. These institutional locations then place some private parties at the risk of having their core interests and rights harmed by other private parties. It is this unique relationship, which is not reducible either to the classical understand­ing of the ‘vertical’ equation between state and private parties or (as observed above) to the horizontal equation inter se between private parties, that justifies the application of constitutional bills of rights to certain ‘private relationships’.