CRITIQUE
As the very label ‘functional equivalence’ suggests, this set of approaches depends upon finding points of overlap - in character, functions or impact - between the private party and the state.
The more one can ‘equate’ the private party with (what we think of as) the state, the greater chance of having it subjected to the bill of rights. This is reflected, for example, in the US state action cases, where the majority and dissenting opinions regularly disagree on the application of the test but agree on the principle that, ultimately, in some way, if a private party is to be bound by the Bill of Rights, its actions must be ‘attributable’ to the state.It intuitively follows that functional equivalence leaves untouched the assumptions underlying the default vertical approach. As Barak-Erez acknowledges, the result is that ‘the distinction between public and private can be preserved while acknowledging that the line between the two should now be drawn differently’.[178] This is particularly obvious with the approach outlined in section IIA, where the whole enquiry is about how much ‘control’ the state has over a private party, or how ‘entangled’ it is. It is also pervasive (albeit to a subtler degree) in section IIB, where the emphasis shifts to functions. For example, the focus on ‘delegation’ rests upon an ideological conception of what the state is and what it should be doing. In his concurring opinion in Reitman v Mulkey (a case involving an amendment to the Californian Constitution that would have allowed racially restrictive covenants), for example, Justice Douglas asked about the role of the state in its ‘historical and classical sense’.[179] Justice Brennan’s opinion in Blum v Yaretsky was premised upon the responsibilities of the state in ‘in an era of active governmental intervention to tackle social ills’.[180]
The problem, however, is not simply that the delegation argument appears to turn upon whether a majority on the bench believes that the state should be the nightwatchman of classical liberal theory or the welfare state of the midtwentieth century,[181] or take some other historical form altogether.
The problem is also that, whatever vision of the state one operates with, it remains centred as a unique, normatively significant threat to rights. In other words, the ‘functions’ in question are not considered on their own terms, but whether they can, in some way, be associated with the state. It is that association which determines the question of whether the performance of those functions needs to respect rights. This is evident from how judges in both the USA and South Africa have rejected looking at functions purely from the perspective of their potential to impact the ‘public interest’, and insisted on a further, tangible connection with the state.[182] In Jackson, for example, the US Supreme Court caricatured the argument by dismissively observing that ‘doctors, optometrists, lawyers, Metropolitan, and Nebbia’s upstate New York grocery selling a quart of milk’[183] were all enterprises ‘affected with a public interest’,[184] but ‘without more’,[185] did not fall within the contours of state action. In Calibre Clinical Consulting, the South African Supreme Court of Appeal noted that there was no support, either in South African case law or in cases from abroad (in this case, the USA, Canada and theUK), for the proposition that if ‘the public has an interest in the manner in which [a private body’s] powers are exercised or its functions are performed’,[186] it is therefore subjected to the Bill of Rights. The SCA then went on to define ‘public function’ - the specific term used in the Constitution - in terms of the state, by observing that public functions were those pertaining to the people as a whole, ‘which is pre-eminently the terrain of government’.[187]
The assumptions underlying the default vertical approach are even clearer when we consider the element of ‘monopoly’ as one of the components of functional equivalence. The idea of the ‘monopoly’ (whether it is monopoly over the supply of a particular service or monopoly over coercive power in specific sectors, both of which are considered above), by its very nature, harks back to the conception of sovereignty located at a single, indivisible point, and therefore a unique threat to core individual interests.
What the monopoly argument misses, however, is that a particular private party need not occupy the position of a monopolist for it to effectively threaten rights. It could, rather, be one among many parties in an institutional framework that presents the rights bearer with no effective choice. This shift from viewing potentially rights-infringing actions from the perspective of the private party committing those actions to viewing them as components of an institution that accords them their specific salience will be developed further in chapter five, accompanied by a critique of the understanding of power at the heart of the default vertical approach. Here, it is sufficient to flag that the monopoly argument rests upon an individualised account of power, as opposed to a depersonalised or structural one.
Consequently, if the default vertical approach’s division of the world into ‘public power’ (subject to constitutional constraint) and ‘private society’ (left to its ‘free’ development, subject to reasonable legislative control) is itself the problem, functional equivalence does nothing to resolve it. It can never account for the exercise of ‘private power’ that does not sufficiently resemble state power. It therefore remains a limited approach.
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