INTRODUCTION

In chapter one, I set out the three conceptual assumptions that underlie the default vertical approach to understanding constitutional bills of rights: sovereignty, freedom and individual responsibility.

The default vertical approach holds that bills of rights are primarily designed to apply to the state, and that consequently, the application of constitu­tional rights to non-state parties stands in need of special justification. In chapter one, I focused on the ‘vertical’ component of this approach, inter­rogating the conceptual assumptions that make the relationship between the individual and the state central to the application of bills of rights. In this chapter and the next, I shall examine its ‘default’ character by demonstrat­ing how even departures from verticality remain bound to one or more of its founding assumptions.

Departures from the default vertical approach have received sustained focus and critique in the existing literature. According to scholarly accounts, they can be broadly classified as follows:¹ first, approaches that ask what a private party is or does (considered in this chapter); and secondly, approaches that seek to indirectly reach the acts of a private party by going through the state (‘indirect horizontality’, considered in the next chapter).

In examining these approaches, my analysis in this chapter and the next shall be comparative. I shall not, however, undertake a jurisdiction-by-jurisdiction approach, as some scholars have done.² Instead, I shall focus on the archetypal approaches outlined above, and examine how they have been treated by certain prominent constitutional and appellate courts. In doing so, my selection of jurisdictions attempts to follow a principle of broad geographical, historical and size-based representativeness within the English-speaking constitutional world. Thus, this chapter considers the USA (which, as discussed in chapter one, has been a dominant influence when it comes to the default vertical approach), India (a Global South constitutional democracy with more than a billion people, whose constitution was framed during the first wave of British decolonisation) and South Africa (another post-colonial nation, whose constitution was framed towards the end of the twentieth century).³ The next chapter also considers Germany (which is not an English-speaking jurisdiction, but whose concept of indirect horizontality has influenced constitutional jurisprudence worldwide), Ireland (whose constitutional tort doctrine is arguably a form of direct horizon­tality) and - briefly - the Court of Justice of the European Union. I recognise that the cases I discuss may not be representative of the only way in which a particular jurisdiction treats the question at issue. Inconsistencies and outliers are features of every legal system where the doctrine of precedent has some role to play.

I also acknowledge that there exist jurisdictions such as Greece,⁴ Spain⁵ and Colombia⁶ where constitutional doctrine has considered the horizontal

Rivera-Perez, ‘What's the Constitution Got to Do with It? Expanding the Scope Of Constitutional Rights into the Private Sphere' (2012) 1 Creighton International and Comparative Law Journal 189; J Thomas, Public Rights, Private Relations (Oxford University Press, 2015) ch 1; S Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights' (2003) 102 Michigan Law Review 387.

²For an example of this approach, see J Mathews, Expanding Rights’ Reach: Constitutions, Private Law, and Judicial Power (Oxford University Press, 2018), comparing the USA, Canada and Germany.

³ It is important to note that the Canadian ‘governmental functions' approach follows the same logic as the state action approaches in the USA and South Africa, but is narrower in its operation. Consequently, for the purposes of this book, Canadian jurisprudence will not add significantly to the scope of the argument.

⁴C Akrivopoulou, ‘Greece: Taking Private Law Seriously in the Application of Constitutional Rights' in D Oliver and J Fedtke (eds), Human Rights and the Private Sphere: A Comparative Study (Routledge, 2007) 157.

⁵ A Rodriguez Liboreiro, ‘Spain: A Jurisdiction Recognising the Direct Horizontal Application of Human Rights' in Oliver and Fedtke, Human Rights and the Private Sphere (n 4) 378.

⁶ Rivera-Perez, ‘What's the Constitution Got to Do with It?' (n 1) 203-07. application of rights, but whose approaches may not sit easily with the arche­types discussed in this chapter and the next. In that sense, I make no claim to comprehensiveness.

With these preliminary remarks, we now come to the subject matter of this chapter: the ‘public character of private actors' (section II). This first set of approaches focus on how closely connected a private party is to the state in its composition (section IIA), its functioning (section IIB), its ability to impact fundamental rights (section IIC), or some combination of the three. If the connection is proximate enough, the acts of the private party are deemed ‘attrib­utable' to the state, and it is subjected to the bill of rights (in that jurisdiction). In order to avoid confusion, it is important to note that these approaches are conceptually distinct from approaches that place positive obligations upon the state to protect individual rights. The result of a finding of ‘attribution', rather, is that it is the private body that is subjected to the bill of rights, by virtue of its resemblance to the state.

There is no dearth of scholarly criticism of these approaches. For example, the US ‘state action' doctrine - an exemplar of the first category - has been famously called ‘a conceptual disaster area'.^[125] Criticisms of this kind focus on how the line-drawing exercise to determine what constitutes enough proxim­ity to the ‘state' is unsatisfactory (and that, as a corollary, the line should be drawn elsewhere^[126]), or even indicate that it is inherently arbitrary and incapa­ble of principled delineation.^[127] It is not my purpose in this chapter to reiterate these criticisms. My focus lies elsewhere. I shall demonstrate how, even as they purport to ‘depart' from verticality by applying bills of rights against private parties, these approaches continue to be bound by the conceptual assumptions of the default vertical approach. In other words, by equating a private party to the state (the first category), these ‘departures' still place the state at the heart of their analysis.

For example, within the conceptual framework of ‘attribution', this cate­gory of approaches invariably ends up focusing on questions such as whether the state has ‘delegated’ its functions to a private party or whether a private party possesses a ‘monopoly’ over a domain in a manner similar to the state. The ideas of both delegation and monopoly hark back to the unitary, centralised and monopolistic conception of sovereignty that constitutes the first assumption of the default vertical approach (section III). These approaches, therefore, are deficient in vital ways. However, they also have elements that can provide us with valuable insights in building a more convincing model. For example, a focus upon a private party’s impact upon (or ability to impact) the rights protected by a constitution can serve as a vital building block (section IV), a proposition that I shall develop further in chapter five.

II.