CONCLUSION: TOWARDS THE INSTITUTIONAL MODEL

Default verticality is founded upon the public/private divide. In particular, default verticality requires two moves: first, drawing a normative distinction between the state/individual relationship on the one hand and ‘private’ relation­ships on the other; and secondly, demonstrating that this distinction warrants presumptively applying the constitutional rights framework to the first set of cases, but not to the second.

Judicial attempts to depart from default verticality (discussed in chapters two and three) have accepted these moves to different degrees, primarily because they continue to subscribe to the underlying assumptions. At the same time, unbounded direct horizontality, which effectively rejects both moves and denies that the rights framework bears any relation to the nature of the relationship between the rights holder and the duty bearer, creates problems of its own. The models discussed in this chapter attempt to take a different path. They acknowledge that a particular relationship must fulfil certain conditions before the constitutional rights framework applies (conditions that, by definition, are present in the state/individual relationship, but not in all private relationships). At the same time, the starting point need not be an acceptance of the state as the default duty bearer. The question is: what are those conditions and how do we identify them?

Jean Thomas answers the question by examining the state/individual rela­tionship and ‘extrapolating’ its normatively significant features. Her analysis focuses upon a difference in power between the parties to a private relationship. This difference is a necessary, but not sufficient, condition for the rights frame­work to apply.

Van der Walt, on the other hand, is more explicit about rejecting the two moves. He notes that the purpose of the constitutional rights framework is to address hierarchy - whether ‘public’ or ‘private’. But, like Thomas, Van der Walt also accepts that not every ‘private’ hierarchy is or ought to be subjected to that framework. He therefore argues that it is in those private relationships where the hierarchy ‘thematises’ a broader institutional conflict, that the rights frame­work will apply. Van der Walt’s attempt to flesh this out in more concrete terms, however, is unsatisfactory. His articulation of it in terms of ‘social majorities and minorities’ is neither clearly defined nor adequately justified.

Nonetheless, both Thomas and Van der Walt demonstrate, through their respective models, the issues that direct horizontality must address, and indi­cate a path forward for how it might do so. In the next chapter, I will articulate and develop a model of bounded horizontal rights that will attempt to take this path. In particular, I will argue that: (i) it is correct that the constitutional rights framework applies to private relationships in cases where there exists a ‘private hierarchy’, or a difference of power; (ii) that the relationship in question is nested, or embedded, within an institution, and that the difference in power flows from the parties’ relative locations within that institution; and (iii) the private relationship and the institution are mutually constitutive: the institution persists because of an aggregation of similar private relationships, while the private relationships themselves derive their force and salience from the institu­tion. This, among other things, is what justifies placing the obligation upon the duty bearer. The institutional model, thus, is founded on a rejection of the three assumptions of default verticality, as well as a refusal to take the public/private divide as a normatively significant starting point for the application of the rights framework.