INTRODUCTION
In this book, I have attempted to articulate a model of bounded horizontality that is both theoretically sound, and concretely applicable to adjudication. The need for such a model arises from the fact that while ‘default verticality’ - according to which constitutional rights are presumptively applicable between the individual and the state - has long been found to be unsatisfactory, attempts to depart from it have been equally so.
This is because they have remained bound to one or more of its foundational assumptions. Furthermore, in the constitutions that have been studied in this book, which make provisions for direct horizontality, whether general or specific, constitutional courts have invoked them in a piecemeal, ad hoc fashion, without developing a principled approach to when horizontality should apply. A part of the reason for this is undoubtedly a fear that the floodgates might open if horizontal rights were applied indiscriminately, and the impact that would have on existing legislative frameworks, as well as on private law more generally.For this reason, both theoretically and practically, it is important to articulate a model of bounded horizontality that specifies the scope and limitations upon the application of horizontal rights, the circumstances under which they may be invoked, the circumstances in which they are inapplicable, and the relationship between horizontal rights and private law. According to the institutional approach, horizontality applies within institutions (economic, social or cultural), where a private party’s institutional location allows them to violate the rights of another. Institutions are characterised by their comprehensiveness and the difficulty of exit, while institutional power is characterised by its enduring and impersonal character, as well as by the fact that, in general, it is extremely difficult for a specific private party to overcome an institutional power difference or exit the institution.
On the flip side, where any of these conditions are absent - ie where one private party alleges a violation of their rights by another but the relationship between the two is not mediated by an institution, or where there is no institutional difference in power - the constitution will not apply horizontally (ordinary law, of course, will continue to apply). To take a simple example, assault and battery will continue to be addressed through the laws of tort and crime, but not through a horizontally applicable constitutional right to life. Similarly, ordinary agreements will continue to be governed by the rules set out under contract law. Naturally, there are sub-domains of private law where this will not hold: domestic violence, for example, may require a sensitivity to the institutional context that takes it beyond the realm of tort and crime (see, for example, India's domestic violence legislation, which I discussed in the previous chapter). Similarly, labour law, as I discussed in chapter six, self-consciously departs from the law of contract and would benefit from an institutional analysis.Following the structure of this book, this concluding chapter has two sections. In the first, backward-looking section, I will sum up the argument in part I, where the institutional approach was laid out in full (section II). In the second, forward-looking section, I will show how, in more recent constitutions (such as those of Kenya and South Africa), despite express provisions in the constitutional text, horizontal application remains ‘a concept in search of content'.[707] Courts in both jurisdictions have avoided setting out a consistent, principled approach towards horizontality, thus demonstrating the present vacuum - and need - for a workable theory (such as the institutional approach). I will finish by examining a recent case from the Jamaican Court of Appeal (Tomlinson), which was delivered while this book was being written but which did address the question of horizontality head on. The case involved an unsuccessful attempt to apply the horizontal rights provision of the Jamaican Constitution (which, like South Africa's section 8, is framed in general terms) to a dispute between private parties. My analysis of this judgment will attempt to argue that an application of the institutional approach might have led to a different, intuitively more plausible outcome, thus demonstrating its practical utility to contemporary, comparative constitutional jurisprudence (section III). As the Jamaican Court of Appeal judgment as well as the recent jurisprudence of the Kenyan and South African judiciaries show, courts are presently grappling with conceptual issues around direct horizontality. For that reason, the analysis developed in this book will, it is hoped, be of relevance.
II.