THE INSTITUTIONAL APPROACH: A SUMMARY

Modern constitutionalism is characterised by ‘default verticality', according to which constitutional rights are presumptively applicable against the state. Horizontal application is a departure from this norm, and therefore exists only in a set of exceptional and narrowly defined circumstances.

These three assumptions are mutually reinforcing, and constitutive of the public/private divide (as it is popularly known). The concept of unitary sover­eignty allows for the articulation of a ‘private sphere' where the absence of state power can be treated as synonymous with freedom. Furthermore, the concept of individual responsibility is bound up with a vision of ‘private individuals' within the ‘private sphere' being formally equal, and therefore equally free when deciding whether and how to engage with each other. This, in turn, is enabled by the clean separation between the ‘vertical' plane upon which the state (with its sovereign power) and the individual interact, and the ‘horizontal' (ie formally equal) plane upon which private relationships are shaped.

Thus, as a result of these overlapping assumptions, the difference in power between the state and the individual (and the concomitant ability of the state to violate the individual's rights) is presumptively taken as an object of constitu­tional concern, and subjected to the framework of constitutional rights.

Identifying the underlying assumptions of default verticality enables us to understand that even where courts have applied constitutional rights against private parties, the doctrinal bases remain tied to one or more of those very assumptions. This was considered in chapters two and three of this book. In chapter two, I looked at the ‘state action doctrine', variants of which are applied by courts in multiple jurisdictions. Put simply, the ‘state action doctrine' is a doctrine of functional equivalence that asks if the actions of a formally private entity can be ‘attributed' to the state. Attribution is determined through a range of overlapping tests: the nature and extent of state control over the private party, the functions performed by the private party, the ability of the private party to infringe people's rights, and so on. The state action doctrine, as its name suggests, continues to centre the state as the primary object of analysis. A private party is subjected to constitutional rights if, in its structure or function­ing, it bears a close enough resemblance to the state. While courts have disagreed over what constitutes sufficient resemblance, there has been agreement over the fact that a strong degree of resemblance has to be established.

The link between the state action doctrine and the concept of unitary sovereignty (one of the assumptions underlying default verticality) is particularly evident when we consider some of the indicators that courts have used to determine attribution: in particular, delegation and monopoly. Courts ask if a private party is performing a function that has been ‘delegated' to it by the state, thus reinforcing a framework under which it is (delegable) state power that remains the subject of constitutional concern.

Thus, upon unpacking the state action doctrine, we can see how it remains tied to the assumptions of default verticality, and therefore to its insufficiencies and limitations. There is, however, an important insight that the state action doctrine does provide in some of its iterations: by also asking whether a private party has the ability to impact an individual's rights, to that extent it places the rights bearer at the centre of the enquiry. It is equally clear, however, that not every circumstance in which a private party can violate the rights of another is a fit case for applying constitutional rights horizontally. There is, therefore, a need to develop a set of principles to determine which private relationships are appropriately subject to a horizontal rights framework.

If the state action doctrine remains primarily tied to the conception of unitary sovereignty, then the other prominent departure from verticality - indi­rect horizontality, the focus of chapter three of the book - often ends up being tied to abstract freedom and individual responsibility. Indirect horizontality uses the form of private law to apply constitutional rights between private parties, primarily by interpreting broadly worded private law provisions in conformity with constitutional rights.

Issues with both the state action doctrine and indirect horizontality raise the question of whether the resolution is simply direct horizontality, ie apply­ing constitutional rights regardless of whether the duty bearer is the state or a private party. ‘Unbounded direct horizontality’, however, raises serious prob­lems of overlap with existing regimes of private law and creates concerns around institutional competence as well as separation of powers, for both principled (ie democracy-based) and pragmatic reasons. In many circumstances, adjusting the rights and obligations between private parties is a task that is better left to legislatures through the law-making process, rather than courts through direct litigation.

It is therefore clear that any model of horizontality must be ‘bounded’ in nature, ie there must be a set of principles that determine which private relationships are subject to a horizontal rights framework and which are not. Furthermore, these principles must ensure that the three assumptions of default verticality - unitary sovereignty, abstract freedom and individual responsibility - do not constrain horizontality in the ways discussed above. The inadequacies of the state action doctrine and indirect horizontality suggest that there are two important aspects that a model of bounded horizontality ought to take into account: first, centring the rights bearer, and making the ability of a private party to impact the rights of another a relevant factor; and secondly, paying close attention to the relational context within which private parties engage with each other.

In recent years, scholars have articulated models of bounded direct horizon- tality along the lines indicated above. In chapter four, I considered two prominent contemporary models, advanced by Johan van der Walt and Jean Thomas. At the core of Van der Walt’s critique of default verticality is how it treats private relationships in an atomised sense, ie simply as relationships between two formally equivalent private parties. Van der Walt argues, on the other hand, that certain private relationships can only be understood in the larger social context within which they are nested. For example, racially restrictive cove­nants do not only involve the property owner and the prospective buyer, but are located within the larger context of racial discrimination and private zoning, from which they cannot be separated. Van der Walt argues that in certain cases, this background context possesses the normative salience that justifies applying a horizontal rights framework to private relationships. He identifies the context as one involving ‘social majorities and minorities’.

Van der Walt’s model provides us with an important link between default verticality’s assumptions of abstract freedom and individual responsibility on the one hand and the atomisation of private relationships on the other. He thus makes a convincing case for using social context as the basis to determine which private relationships ought to be subjected to a horizontal rights framework. However, his solution - interactions between ‘social majorities and minorities’ - appears both underdetermined and insufficient.

A more persuasive account of what such a context might entail is provided by Jean Thomas. Thomas argues that what is morally salient in the relationship between the state and private parties is the existence of power on the one hand and dependency/vulnerability on the other. Private relationships that replicate this equation of power and dependency (here Thomas, like Van der Walt, takes issue with default verticality’s assumption of private parties being formally equal and equally free to shape the terms of their relationships) are to be subjected to the horizontal rights framework.

Nonetheless, Thomas is aware that this is a necessary, but not sufficient, condition for the application of her model, as almost every private relationship will involve a power difference of some kind. In establishing a model of bounded horizontality, therefore, it must be the case that certain kinds of power relation­ships (which, in simpler terms, translates into the ability of one party to violate the rights of another, thus re-centring the perspective of the rights bearer) qual­ify, while others do not. However, in developing these further principled limits, Thomas appears to fall back into the assumptions of default verticality (espe­cially unitary sovereignty) that bounded horizontally was meant to escape: a focus on monopoly control and a personalisation of power with respect to the duty bearer (by requiring, for example, that the duty bearer make an ‘undertak­ing’ that creates the relationship between themselves and the rights bearer).

The critique of Van der Walt and Thomas reveals that their models are complementary: Van der Walt’s focus on social context (which, as a corollary, is predicated on a non-personalised, more structural account of power) and Thomas’s stress on the rights bearer can, together, provide the foundations of a persuasive model of bounded direct horizontality. This model, which I call the institutional approach, is developed in chapter five of this book.

The institutional approach is a model of bounded horizontality. It argues for the application of horizontal rights to relationships between private parties where: first, both parties are located within the same institution; secondly, the parties’ relative locations within the institution lead to a difference in power between them; and thirdly, this difference in power enables one party to violate the rights of the other. The institutional approach argues that in such a situ­ation, horizontal rights may be invoked to mitigate this imbalance of power. Which rights are applicable, and to what extent, will depend upon the nature of the parties’ relationship, the difference in power between them and the rights that one party is able to infringe or violate.

The institutional approach requires a working understanding of an ‘institu­tion’. While the concept of an institution has a long provenance in sociological literature, the institutional approach includes only a subset of the larger cate­gory of ‘institutions’, as commonly understood. ‘Institutions’ must be, first, comprehensive, ie they must exercise a significant influence upon an individual’s life. Indicators of this might include, for instance, facilitating access to a range of basic goods, or requiring mandatory participation. Secondly, individual exit from an institution is extremely difficult in ordinary circumstances. Thus, while a particular school or hospital might not be an institution in this sense (although it might be in the broader, sociological sense), the labour market and the family do constitute institutions for the purposes of the institutional approach.

In chapter five, the workings of the institutional approach were illustrated through three judgments of the Supreme Court of India, interpreting the Indian Constitution’s horizontal rights provisions. These provisions are specific and concrete: they proscribe discrimination in access to shops, the social practice of untouchability and forced labour. However, by interpreting them within an institutional framework, the Indian Supreme Court read into them wider prohibitions of social boycotts, menstruation-based practices of gender discrim­ination and the denial of minimum wages to workers by employers. The Court was able to do this by arguing that these specific provisions were nested within a range of institutional practices. What lent them their unique normative sali­ence was how they were the most concrete manifestations of rights violations and inequalities within broader institutions: those of caste, of patriarchy and of the labour market. As an analysis of these judgments showed, an application of the institutional approach requires the Court to shift between levels of abstrac­tion - from specific rights and obligations to institutional practices and to the institutions themselves. That notwithstanding, it is important to stress, as these cases show, that this is something well within the capacities and bounds of the adjudicatory process.

To be successful, the institutional approach must demonstrate two things: that it is not bound to the assumptions of default verticality, and that it does not suffer from the limitations of unbounded horizontality. With respect to the first, by making institutions the centre of its focus, the institutional approach displaces the assumption of unitary sovereignty. Its key contribution lies in how it depersonalises power and delinks it from the idea of monopoly. In this, it is enabled by taking the perspective of the rights bearer. Thus, while no individual private party may hold monopoly power, that power may exist within the insti­tution itself - something that is revealed only if we focus upon the rights bearer and ask whether she has a feasible exit option from the institution. Furthermore, by making differences in power within institutions normatively salient, the insti­tutional approach displaces the assumptions of abstract freedom and individual sovereignty: private parties’ locations within institutions - often a function of their socioeconomic circumstances - are relevant to determining when and how the horizontal rights framework applies to their relationships.

The institutional approach has the added benefit of complementing exist­ing regimes of private law instead of supplanting them. In situations where the institutional approach is applicable and private law is non-existent, there can be a straightforward direct application of horizontal rights to the private relation­ship at issue. However, where private law does exist, the institutional approach can play a supervisory role. To the extent that the private law regime does not

adequately take into account institutional differences in power, the institutional approach can require reinterpretation or modification (in a manner similar to indirect horizontality). Another possibility is that a private party challenges legal obligations placed upon it by a private law regime on the grounds that its own rights are being violated. Here, the institutional approach comes in use to ensure that any ‘balancing of rights' between the private parties factored in their institutional difference in power. For instance, a private property owner objecting to a law against racially restrictive covenanting on the grounds that it violates their property rights will fail in their claim once it becomes clear that the analysis does not require a balancing of equal rights - those of property and non-discrimination - between equal parties, but instead requires taking into account the constitutional commitment to eliminate institutional racism.

How the institutional approach might work in tandem with - and, when necessary, independent from - private law has been considered so far in part II of this book. Part II has considered the application of the institutional approach to two important domains: the labour market and the domestic relationship.

In chapter six, I examined the scope of the institutional approach in the context of the legal regulation of platform work. Platform work was chosen for the study for two reasons. First, it forms a part of the labour market, which constitutes an ‘institution' for the purposes of the institutional approach. Secondly, the application of existing labour law frameworks to platform work is a subject of substantial contemporary controversy, and therefore provides an excellent case study for seeing how the institutional approach may work, both in the absence of legislation and complementary to it.

Applying the institutional approach to platform work allows us to see that the ‘app' (which is under the proprietary control of the platform) constitutes the basis of the institutional power differential between platforms and workers. The ‘app' is a gateway (through its algorithms) into accessing work, allows for price fixation and control over the manner of work, authorises control through surveillance, enables platforms to dismiss workers at any time and is the medium through which frequent changes in terms and conditions are communicated to workers on a take-it-or-leave-it basis. The institutional approach's power-centred approach is thus truer to the reality of platform work than ‘traditional' labour law frameworks, where indicia such as ownership of equipment or ability to work for multiple employers are not easily transplanted to the flexible/precari- ous nature of digital platform work.

Furthermore, an application of the institutional approach allows us to derive a range of labour rights, enforceable by workers against employers, including rights to a minimum wage, to non-discrimination, to collective bargaining and against unfair dismissal. In many countries, these rights already exist in labour codes. The utility of the institutional approach is to ensure that platform workers fall within the scope of those codes, and to explain as well as provide further constitutional backing to judicial reasoning (such as in the UK) that has already begun to take the institutional power difference between the parties into account while considering these questions. Furthermore, in some cases, such as the scope of collective bargaining and algorithmic discrimination, the institu­tional approach provides reasons for courts to go beyond the existing limits of the law (this was discussed briefly, but a full exploration is beyond the scope of this book).

In the final substantive chapter of this book (chapter seven), I considered the case of domestic relationships. Nested within the larger institution of the family, domestic relationships also fulfil the criteria of ‘institutions' for the purposes of the institutional approach, being both comprehensive and placing high costs upon exit. Domestic relationships are characterised by unpaid spousal domestic labour, which, according to global statistics, is overwhelmingly gendered and performed by women. Unpaid domestic labour is thus a ground for invoking constitutional rights horizontally, inter se between the spouses: it violates the rights to non-discrimination, to property, to livelihood and, arguably, against forced labour.

For the purposes of the chapter, I considered one specific remedy, that of presumptively equal property rights upon separation. This remedy flows directly from the fact that the gendered character of unpaid domestic work makes it likely that there will exist unequal property distribution between the parties in case of, and upon, separation. Presumptively equal property rights, by facili­tating an exit from the domestic relationship, enable both a greater degree of rights protection within the relationship (as ‘voice' and ‘exit' are correlative) and protection upon separation. Thus, while the platform work chapter encour­ages the bringing of an institutional lens to contract, the domestic relationships chapter encourages the bringing of that lens to property.

Consideration of different jurisdictions illustrates how the institutional approach can be applied across a range of circumstances: as an interpretive aid in cases where legislation guarantees a form of equal property rights protection on separation but needs further judicial articulation to resolve disputes centring around, for example, what kind of property falls within the scope of equal divi­sion and what does not; as a guide to courts to enforce rights inter se when legislation does not yet exist; and finally, in situations such as in Kenya, where there exist specific horizontally applicable constitutional rights guaranteeing equality within marriages or domestic relationships and where existing legisla­tion must be interpreted consistently with the country's constitution.

Chapters six and seven thus show that the institutional approach can carve out a principled and bounded domain for the operation of horizontal rights. Horizontality can complement or modify existing regimes of private law (with­out supplanting them), and also serve as a source of rights enforcement and remedies where private law does not exist or where there are gaps in the legal framework. In particular, the institutional approach can serve an important role in judicial adjudication. This is particularly important at a time when private power remains as consequential as ever, but courts continue to be in search of a principled approach towards direct horizontality.

III.