STRENGTHS AND WEAKNESSES: AN ANALYSIS

A. Thomas

Let us begin with Thomas’s model. There are two central concerns that under­pin her approach: the transplant problem, and placing principled limits upon the application of the rights framework in the private domain.

[Thomas] looks at the basic structure and context of our public law practices, and the basic tenets of modern rights theory. From these sources, she sets out to develop an account of public law rights that is sufficiently abstract as to be institutionally translatable from public to private law, but which is also precise enough to provide judges with meaningful guidance in identifying and deciding cases grounded in those norms. (emphasis added)^[327]

Both the application and the limits of horizontality flow from this extrapolation. Therefore, at the heart of Thomas’s model lie two choices: (i) her identification of the ‘basic structure and context of our public law practices’; and (ii) the level of abstraction at which they are identified (before being ‘transplanted’ into the private sphere).

For Thomas, then, the public law relationship between the state and private parties is characterised by the ideas of control, dependency and the undertaking. What makes the vertical relationship subject to the rights framework, according to her, are: (i) the control exercised by the state over basic goods; (ii) the depend­ence of individuals upon the state for the continued enjoyment of those goods; and (iii) that this control and dependency are functions of the ‘state’s undertak­ing to coercively govern’.^[328] Having identified these salient features at a sufficient level of abstraction, Thomas is then able to ‘translate’ them into the horizontal context. Therefore, in a situation where (i) a private party controls a basic good, (ii) other private parties depend upon it for the continued enjoyment of that good and (iii) the relationship between the parties is a function of an undertak­ing, rights will apply.

However, the ideas of ‘control’ and ‘undertaking’ require one further step of elaboration, in the ‘transplant’ process. To do this, Thomas once again looks to the public law context. Control, therefore, is understood as a state­like ‘monopoly’ over access to a basic good;^[329] and through the vehicle of the ‘undertaking’, Thomas draws a distinction between goods that are indepen­dently enjoyed by the rights holder and those that are created by the (private) duty bearer in the course of the undertaking. In the former case, she argues that substantive horizontal rights apply (ie the good cannot be taken away), while in the latter, only procedural rights apply. This completes the model.

There are, however, two crucial issues with this second move in the ‘transplant’ process. The first is the assumption that the monopolistic aspect of the state’s control must accompany the transplantation to the private sphere. Recall that some of the problems with the concept of monopoly were discussed in chapter two: in particular, that ideas of monopoly continue to be bound to default verticality’s conception of sovereignty as unitary and undivided.^[330] It is true, of course, that the state does exercise a monopoly over legitimate coercion, and that the existence of that monopoly appears - intuitively - to be a relevant factor in the application of the rights framework. It does not necessarily follow, however - as Thomas appears to believe - that in the process of transplant, the existence of the monopoly must shift from the state to the individual duty bearer at issue.

Consider, for example, one of the classic cases where there exists a strong intuitive case for the application of horizontal rights: racially restrictive cove­nanting, of the Shelley v Kraemer variety. As discussed before, it is not the case that the individual house owner who refuses to sell or rent their property to a person on account of their race has a monopoly over the housing market.

To put it another way, using the language of monopoly: the distinctive feature of a monopoly is that those who are subject to it have no feasible exit option. In the case of racially restrictive covenanting in a racist society, those at the receiving end - the putative rights bearers - also lack a feasible exit option (ie exiting from the structures and institutions of racism that are manifested in specific forms, such as restrictive covenants). However, the fact that the rights holder lacks a feasible exit option does not mean that an individual duty bearer exercises a monopoly. Rather, the individual duty bearer’s acts are constitutive of a social institution, which is where the monopoly (if any) rests.

The flaw in Thomas’s approach, therefore, lies in the assumption that when the ‘transplant’ happens from public to private sphere, the structure of the rela­tionship between the individual and the state must be replicated between the two private parties, whose relationship is being made subject to the rights framework. It is this assumption that compels her to insist that the duty holder must exer­cise a form of control - and correspondingly, that the rights bearer must be in a situation of dependency, which structurally resembles the vertical individual­state relationship.

The second issue with Thomas’s transplant is her distinction between goods that have an ‘independent existence’ and goods that are ‘created’ by the private duty holder. Recall that in the former case, Thomas argues that there are substan­tive obligations upon the private duty holder, while in the latter case, there are only procedural obligations. For instance, a private corporation that has set up a plant in a particular area cannot divert the local water supply to that plant and deprive the local villagers of access to drinking water.^[332] However - Thomas argues - a drug company that has developed an anti-HIV vaccine has no substan­tive obligation to make it available at affordable prices to those that need it.

As multiple critics have pointed out, though, Thomas ignores the fact that private duty holders cannot ‘create’ basic goods without a supporting legal structure, enacted by the state. Tushnet observes, for instance, that Thomas’s argument remains vulnerable to the legal realist critique discussed in chapter three:

[T]he [legal realist] analysis treats those relations of dependency as the result of the distribution of the rights of property, contract and tort that have the cumulative effect of making it difficult for some to live decent lives without becoming dependent - at the very least, upon those willing to offer them employment on terms dictated by the employer. (emphasis added)^[333]

In the case of the drug company, for example - leaving aside the factual point that, historically, drug research and development has been heavily underwritten by the state - the controversy only arises because the law of patents entitles the company to prohibit the rest of the world from making that same drug - on the pain of state coercion.

It is important to understand that these two objections stem from the same source. As indicated above, in her ‘transplant’ from the public to the private sphere, Thomas wants to ‘extrapolate’ the structural features of the state­individual relationship to the private relationship at issue. This is where the problem arises. First, Thomas is compelled by the logic of her argument to invest the private duty holder with at least some state-like characteristics - leading us back into the difficult terrain encountered in chapters two and three. And secondly, she limits herself to analysing the formal private relationship between the two parties, and not the context within which those relationships are embedded. This obviously remains tied to some of the lingering elements of default verticality.

At a deeper level, Thomas’s approach is constrained by a personalised under­standing of power. Her analysis of dependency, control and the undertaking is informed by viewing power as exercised through individual acts. Under this framework, for example, the power exercised by a monopolist is normatively salient when it comes to the application of the horizontal rights framework. In the case of a non-monopolistic labour market (for example), on the other hand, substantive horizontality would not apply. What this ignores, however, as I have argued previously, is that the exercise of power can be both personalised and depersonalised (ie structural, or exercised through institutions). In both cases, the impact upon the rights bearer - and her rights - is significant. A complete understanding of horizontality (as will be developed in the next chapter) must take both cases into account.

B. Van der Walt

It is precisely these weaknesses that Van der Walt manages to steer clear of. This is because Van der Walt’s starting point is different. Thomas, as we have seen, seeks to extrapolate from the vertical state-individual relationship the struc­tural features that can be transplanted into private relationships. Van der Walt, on the other hand, rejects the transplantation process altogether. His starting point is that the existence of hierarchy attracts the rights framework. Hitherto, that has been relevant primarily in the vertical context because, as I argued in chapter one, it is the hierarchies that persist in the individual-state relation­ship that have been deemed to be morally salient, while most hierarchies in the ‘private’ domain are regarded by default as the ‘natural outcomes of virtuous diligence and natural talent’.^[335] For Van der Walt, consequently, the task is not to derive the structural features of the state-individual relationship, which are then applied to private relationships; rather, it is to establish that the non-application of the rights framework to what he calls ‘private hierarchies’ is unjustifiable.^[336]

The manner in which he does that has been demonstrated in the previous section. What is important to note here is that as Van der Walt is not commit­ted to extrapolating from the structure of rights in the public sphere, he does not need to invest his private duty bearers with state-like characteristics, even in the abstract. Like Thomas, however, what Van der Walt does need to do is to provide the principled framework within which the scope and limits of horizon­tal rights can be articulated. It is here that Van der Walt appears to hit upon the insight that eludes Thomas, along the lines of what we have discussed above. Not all private hierarchies will be subjected to the rights framework, he argues; rather, only those where a violation of rights ‘comes from social “institutions” and not just from individual actors’.^[337] While the form of the legal action remains individual (ie one private party against another), the relevant private relation­ship ‘thematises’ institutional conflict.

As we have seen above, Van der Walt recognises that this argument will not work under default verticality’s assumption of undivided sovereignty that vests within the state, and its corollary: the vision of personalised power. His argu­ment, therefore, rests upon an explicit abandonment of the normative salience of sovereignty. For this reason, the requirement of monopoly - or other aspects resembling sovereignty - are not necessary prerequisites to the application of the horizontal rights framework to private relations.

Van der Walt’s model brings us closer to our intuitive understanding of the paradigmatic case of racially restrictive covenanting, as discussed above. That said, two issues arise. First, if we argue that rights scrutiny is attracted not by the private relationship itself, but by what it ‘thematises’, ie institutional conflict, then the question, as framed by Dagan and Dorfman, arises: how do we ‘justify to the defendant why she should be forced to be the agent of remedying the plaintiff’s unjustified harsh predicament’ (emphasis added)?^[338] In Thomas’s model, as we have seen, the roles played by control, dependency and the under­taking are to ensure that there exist good reasons not just to apply the horizontal rights framework to a private relationship, but also to saddle that specific private party with obligations under that framework. Van der Walt, on the other hand, does not establish why or how ‘institutional conflict’ is best resolved through an individual suit against a specific private defendant.

Secondly, ‘institution’ and ‘institutional conflict’ are not self-defining terms. As we have seen in the previous section, Van der Walt further elaborates this by articulating ‘institutional conflict’ in terms of conflict between ‘social majori­ties’ and ‘minorities’.^[339] However, he does not, in my view, explain why this should be the axis around which the horizontality framework turns. Indeed, the one example that he picks to articulate the point obscures more than it clarifies. Van der Walt spends a significant amount of time discussing the parallel abor­tion litigations in the USA and in Germany.^[340] Both those cases, however, involved challenges to laws, and therefore concerned the vertical relationship between state and individual in its classical sense. Thus, even if the concept of ‘social majorities and minorities’ (here, the anti- and pro-abortion factions in society) emerges out of these examples, it is unclear what role it is expected to play in the horizontal context.

For these reasons, while Van der Walt’s central insight into how individual private relationships can characterise institutional violations of rights is a highly promising one, its development raises questions that he does not answer.

IV.