NSIGHTS
The ‘valuable interests diagnosis’ (section IIC) attempts to transcend the limitations discussed above by pivoting away from equating the private party to the state and asking instead whether its ability to impact ‘vulnerable valuable interests’ is of an order of magnitude similar to that of the state.
At first blush, de-centring the relationship between the private party and the rights holder away from the paradigm of the state appears to resolve the problems highlighted above. One no longer need look for indicia such as control, delegation or monopoly, all of which are bound in different ways to the assumptions underlying default verticality. However, standing alone, this approach under-determines the issue. It cannot explain our persistent intuition that even where valuable interests (Thomas) or basic goods (Barak-Erez) are concerned, state legislation rather than a constitutional bill of rights is the appropriate method of dealing with rights infringement. For instance, bare life is undoubtedly a valuable interest and a basic good. However, we do not think of murder as a constitutionally remediable violation of the right to life of the victim by the murderer. At best, a state that fails to put in place a minimal legislative and police arrangement to protect its citizens' lives may be guilty of a breach of its positive obligations to protect the right to life; however, that is not what we are concerned with here.[188] Consequently, as Thomas points out, the vulnerable valuable interests hypothesis takes us to a place where there remains ‘no principled limitation for the applicative scope of these rights'.[189]Therefore, even if shifting the lens of focus from the state to the rights bearer - as Barek-Erez does - presents us with a good starting point for liberating ourselves from the assumptions of default verticality, further work needs to be done. In particular, the shortcomings of the vulnerable valuable interests diagnosis remind us that we must pay attention to the nature of the specific relationship between the private party and the rights bearer in any given situation. A straightforward transplantation of the rights framework from the ‘public' to the ‘private' is as unconvincing as a model that concentrates on drawing ‘equivalences' between the two. This further work shall be done in chapter five.