Part II of this book will consider the application of the institutional approach to certain contemporary, real-world legal problems, to test how well the concepts evolved in part I can work in practice.
Before I begin, however, the following preliminary observation is in order: the manner in which the institutional approach is deployed will depend on the nature of the constitutional system under consideration.
In chapter five, I considered three case studies from India, a jurisdiction that (i) has a single written constitution, (ii) explicitly guarantees a set of concrete horizontal rights and (iii) provides for judicial review of legislation for constitutional compliance. For these reasons, the Indian example is perhaps the most straightforward illustration of how the institutional approach can be deployed in practice and the distinctive role that it can play in constitutional adjudication.Other situations are more complex. In many constitutions, as we have seen, horizontal rights provisions are open-ended, thus placing a significantly greater burden upon courts when it comes to developing an account of horizontal rights adjudication. In the concluding chapter, I shall consider, in particular, the examples of Jamaica, South Africa and Kenya, where courts have recently been called upon to interpret their constitutions’ horizontal rights provisions in cases involving significant institutional power disparities between parties. We shall see how the institutional approach can make a difference in those contexts.
The final set of situations is the most complex, and will be discussed in (a part of) the next two chapters: jurisdictions where there is no single written constitution, with a judicially enforceable bill that can serve as a hook for the institutional approach (this could also apply to constitutions which have no provisions for horizontality at all). In these circumstances, legislation necessarily plays a dominant role in articulating and concretising rights and obligations within private relationships, and consequently indirect horizontal- ity (or various forms of it) will be the method through which a court might enforce horizontal rights. In these situations, the institutional approach will play a subordinate and complementary role.
What might this role be? In considering some of the case law around platform work and labour law in the UK (chapter six, section V) and domestic relationships in New Zealand (chapter seven, section III), I shall show that there are two kinds of roles the institutional approach can play. The first is to complement existing judicial analysis of private relationships by adding the element of institutional power differences. The second is to (potentially) fill in gaps within the existing legislative framework, to the extent that the court is empowered to do so. In this way, in such contexts, the institutional approach can play a distinctive role in adjudication.