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Social Democracy and the Limits of Rights Constitutionalism

Published online by Cambridge University Press:  20 July 2015

Gavin W. Anderson
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Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law as an artifact produced through and in political struggle. This shift of focus to normative argument is at the expense of contextual diagnosis, which remains valuable in questioning whether constitutional strategies can restrain private power in the name of substantive equality. Rights constitutionalism, reflecting its classical liberal roots, continues to protect private power in important ways.; Two strategies, based in innovations in North American and European constitutionalism respectively, have been proposed to overcome this default. First, the Application to State Institutions (ASI) model seeks to extend the reach of constitutional application to include private actors, and; second the Application to Law (LAW) model seeks to extend the scope of rights by requiring all law to conform to constitutional guarantees, including equality. A sociologically grounded analysis of the comparative jurisprudence shows these models retain key elements of the classical liberal framework, such as the state-civil society distinction, and which have in practice militated against any significant democratization of private power.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 1 , January 2004 , pp. 31 - 59
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Copyright © Canadian Journal of Law and Jurisprudence 2004

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References

I would like to thank the following for their helpful comments on an earlier draft: Harry Arthurs, David Beatty, Sujit Choudhry, David Dyzenhaus, Colin Harvey, Patrick Macklem and Rod Macdonald.

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28. Ibid. at 60.

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39. Loughlin, supra note 27 at 211. Writing in 1992, Loughlin adds a question mark to the end of this phrase, but writing in 1999, he implies this can now be removed: Loughlin, M., “Rights Discourse and Public Law Thought in the UK” in Anderson, G.W., ed., Rights and Democracy: Essays in UK-Canadian Constitutionalism (London: Blackstone, 1999)Google Scholar ch. 9.

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41. See Santos, supra note 5 at 315.

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44. For David Dyzenhaus, Ronald Dworkin’s “great contribution” to legal theory is that he has illuminated that “law is not only about setting clear goals but also about argument as to what those goals should be”: Dyzenhaus, D., “Recrafting the Rule of Law” in Dyzenhaus, D., ed., Recrafting the Rule of Law: The Limits of Legal Order (Oxford and Portland, OR: Hart Publishing, 1999) 1 at 9 Google Scholar.

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48. For example, while Dyzenhaus lauds Dworkin for highlighting the justificatory character of the rule of law (and moving legal theory beyond the Diceyan/Hayekian mistrust of discretion), he recognises the potential limits to the nature of acceptable argument when Dworkin couples this idea of justification to his neutral principles theory, which restricts the goals which the state may pursue through law. Dyzenhaus himself calls for these two aspects to be decoupled—however, while this may open up the scope of justification, as long as he conceives of this idea as being “internal to the law,” it must imply a distinction between legal and non-legal (political) justification, such that the coherence of the former would be undermined by admitting aspects of the latter: Dyzenhaus, supra note 44 at 9. Loughlin makes the obverse point that while Dworkin admits a political dimension to adjudication, it is only certain political issues which “are converted into (questions of justice.”“: Loughlin, M., Sword and Scales: An Examination of the Relationship Between Law and Politics (Oxford and Portland, OR: Hart Publishing, 2000) at 12 Google Scholar.

49. This is captured in Christine Sypnowich’s implication that the left’s distrust of the rule of law risks losing a valuable mechanism which can “check … political ventures, and … restrict the means we deploy to further our ends.”: Sypnowich, C., “Utopia and the Rule of Law” in Dyzenhaus, , ed., supra note 44 at 178.Google Scholar

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51. Loughlin, supra note 27 at 4.

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56. See Galloway, R.W., Justice for All? The Rich and Poor in Supreme Court History 1790-1990 (Durham, NC: Carolina Academic Press, 1991) at 12 Google Scholar.

57. Ibid. at 14.

58. Ibid. at 13.

59. In Charles Beard’s oft-quoted remark, the new Constitution thus represented the idea “that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities”: Galloway, supra note 56 at 12, quoting Beard, Charles, An Economic Analysis of the Constitution of the United States (1913) at 324–25 Google Scholar.

60. See, e.g., Currie, D.P., “Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany” (1989) Sup. Ct. Rev. 333 Google Scholar; Stone, A., The Birth of Judicial Politics in France (Oxford: Oxford University Press, 1992)Google Scholar at ch. 6; Mandel, M., “Legal Politics Italian Style” in Tate, C.N. & Vallinder, T., eds., The Global Expansion of Judicial Power (New York: New York University Press, 1994) 261 Google Scholar.

61. See Klug, H., Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge: Cambridge University Press, 2000) at 67 CrossRefGoogle Scholar &; Santos, , supra note 5 at 318–35 Google Scholar.

62. Leftwich, A., “Governance, democracy and development in the Third World” (1993) 14 Third World Q. 605 at 606 Google Scholar. Leftwich suggests that what is novel about present western visions of the good society now being exported is that liberal democratic reforms are seen as necessarily prior to economic liberalisation, not one of its outcomes (at 605). Some supporters of neo-liberal globalisation echo this view: see, e.g., Charnovitz, S., “The Globalization of Economic Human Rights” (1999) 25 Brook. J. Int’l.L. 113 at 116 Google Scholar who suggests that what is common to international trade and human rights is that both “are largely deregulatory—they declare what the State should not do.”

63. World Bank, World Development Report 1996—From Plan to Market (Oxford: Oxford University Press, 1996)Google Scholar.

64. Ibid. at 44.

65. “Property rights are at the heart of the incentive structures of market economies…. In short, fully specified property rights reward effort and good judgment, thereby assisting economic growth and wealth creation.” Ibid. at 48-49.

66. It is instructive that in its account of these constraints, the World Bank relies on the classical liberal underpinnings of rights constitutionalism: “Formal constraints on arbitrary state power in established market economies derive partly from [constitutional law]. These bodies of law ensure that all legislation is consistent with the national constitutions…. They delineate the rule-making authority of various state bodies, lay out the procedures for enacting laws…, and provide individuals recourse against unlawful or capricious state action.” Ibid. at 94.

67. Ibid. at 97.

68. See Santos, , supra note 5 at 342–43 Google Scholar.

69. Leftwich notes (supra note 62 at 605) that what is distinctive about current insistence on the necessity of good governance projects for building “the good society” is that this “new orthodoxy assumes that there are no inherent trade-offs over time between the various goals of development—such as growth, democracy, stability, equity and autonomy.”

70. Charnovitz, from the perspective of a supporter of the global economy, puts the “synergy” between capitalism and human rights as follows: “When I look at [human rights law], which [others characterize] as deontological, I perceive that it is also efficiency oriented…. When I look at international trade law, which [others characterize] as utilitarian, I perceive that it can also be deontological in affirming the rights of individuals to conduct transborder transactions” (supra note 62 at 115).

71. See, e.g., the First Amendment to the U.S. Constitution: “Congress shall make no law … abridging the freedom of speech, or of the Press.” The Canadian Charter of Rights and Freedoms states at s. 32 (1): “This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament … ; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” In the UK, the Human Rights Act 1998 provides at s. 6 (1): “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

72. Second generation social and economic rights are either not included in the catalogue of rights protected: see the U.S. Constitution, the Canadian Charter of Rights and Freedoms, and the Human Rights Act 1998, or where such rights are included, they are given a lesser status than civil and political rights. For example, most of the positive rights guaranteed in the new constitutions in central and eastern Europe “are not justiciable because they require policy choices by the legislative and executive branches of government. Thus, both the Czech Charter and the Slovak constitutions explicitly stipulate that the positive rights which they grant ‘may be claimed only within the scope of the laws implementing these provisions.’”: Elster, J., Offe, C. & Preuss, U.K. (with Boenker,, F. Goetting, U. & Rueb, F.W.), Institutional Design in Post-communist Societies: Rebuilding the Ship at Sea (Cambridge: Cambridge University Press, 1998) at 87 CrossRefGoogle Scholar.

73. A symbolic indication of this argument is the s. 8 (2) application provision of the 1996 South African Constitution, which states: “A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” While generally regarded as moving beyond the traditional model, and giving some horizontal dimension to the new Constitution (see Cheadle, & Davis, , supra note 18 at 54–55 Google Scholar), it is important to note both the qualifications placed on this, and also how it confirms that the “standard” model is direct applicability against governmental institutions.

74. The hold of this central idea, reflecting the classical liberal distrust of the state, and the necessary valorisation of what lies beyond it in the free realm of civil society, is corroborated in the detail of the comparative jurisprudence. First courts have struck out actions brought against private bodies on the grounds that, ratione personae, they do not cross the threshold for constitutional application. This has its origins in the U.S. state action doctrine. Under this heading, the U.S. Supreme Court has excluded from constitutional review: the decision of an utility company to terminate electrical services, allegedly denying due process (Jackson v. Metropolitan Edison Co. (1974) 419 U.S. 345); the removal of anti-war protesters seeking to assert First Amendment rights of ex Pression and assembly from a shopping mall (Lloyd Corp. v. Tanner (1972) 407 U.S. 551); the licensing powers of the state-created Olympic Committee (San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987) 107 S.Ct. 2971), and; courts giving effect to the terms of discriminatory wills (Evans v. Abney (1970) 396 U.S. 435). This doctrine has proved influential beyond the US, most strikingly in Canada and the Supreme Court there has found the Charter inapplicable to: injunctions applying the common law to restrain secondary picketing (RWDSU v. Dolphin Delivery (1986) 33 D.L.R. (4th) 174); the introduction of mandatory retirement schemes by a publicly funded hospital (Stoffman v. Vancouver General Hospital (1990) 76 D.L.R. (4th) 700), and; court orders making provision for custody under statutory divorce laws (Young v. Young (1994) 108 D.L.R. (4th) 193). The removal of private action from constitutional scrutiny has also characterised the approach of courts outside North America: the South African Constitutional Court has held that the Bill of Rights there speaks principally to state-individual relations, and does not apply to the common law of defamation (Du Plessis v. De Klerk (1996) 3 SA 850 (CC)). The English courts, in pre-Human Rights Act cases have also invoked the idea of some “natural” private sphere to exclude from review a private regulatory body which otherwise, by their own criteria was amenable to the courts’ supervisory jurisdiction (R v. Disciplinary Committee of the Jockey Club, ex p. His Highness the Aga Khan [1993] 1 W.L.R. 909).

75. Stone, , supra note 60 Google Scholar; Mandel, M., The Charter of Rights and the Legalization of Politics in Canada, rev. ed. (Toronto, ON: Thompson Educational Press, 1994)Google Scholar; Sunstein, C., “Lochner’s Legacy” (1987) 87 Rev., Colum. L. 873 Google Scholar; Ewing, , supra note 36 at 414–17 Google Scholar.

76. Arthurs, H.W., “Constitutionalizing Neo-Conservatism and Regional Economic Integration: TINA × 2” in Courchene, T.J., ed., Room to Manoeuvre? Globalization and Policy Convergence (Montreal and Kingston: McGill-Queen’s University Press, 1999) 17 at 25 Google Scholar.

77. It is noteworthy that that where corporations have first presented their claim to bear rights before a variety of courts, the appropriateness of extending “human” rights in this way was not considered relevant for judicial comment: see Santa Clara Co. v. Southern Pacific Railroad (1886) 118 U.S. 394 (U.S. Supreme Court); Hunter v. Southam Inc. (1984) 11 D.L.R. (4th) 641 (Supreme Court of Canada); Sunday Times v. United Kingdom Ser. A, vol. 30 (European Court of Human Rights); and Nationwide News Pty Ltd v. Wills (1992) 177 C.L.R. 1 (High Court of Australia).

78. Again, this doctrine originates in the US, where corporations have enjoyed rights under the First (First National Bank v. Bellotti (1978) 435 US 765) and Fourteenth (Santa Clara Co. v. Southern Pacific Railroad (1886) 118 US 394) Amendments, which they have employed to challenge state interference with their property. Courts around the world have emulated the U.S. example and have conferred a range of benefits on corporate litigants. In Canada, for example, the Charter has been employed by corporations: to overturn a statutory ban on the advertising of cigarettes (RJR-MacDonald Inc. v. Attorney General of Canada et al. (1995) 127 D.L.R. (4th) 1); to strike down legislation granting special search and seizure powers on inspectors investigating restrictive practices (Hunter v. Southam Inc); and, even to gain a religion (R. v. Big M Drug Mart (1985) 18 D.L.R. (4th) 321). The European Court of Human Rights has similarly entertained applications from corporate plaintiffs (Air Canada v. United Kingdom (1995) 20 E.H.R.R. 150 & British American Tobacco Company Ltd. v. The Netherlands (1995) 21 E.H.R.R. 409); and in upholding a company’s Art. 10 freedom of expression rights (Autronic AG v. Switzerland‘(1990) 12 E.H.R.R. 485), stated that this Article “applies to “everyone,” whether natural or legal persons” (ibid. at para. 47) and could not be denied on the basis of the applicant’s status as a limited company or its commercial nature. In Australia, the High Court of Justice, even in the absence of a constitutional charter of rights, has sustained complaints by corporations that their freedom of political communication was infringed, setting aside, for example, laws limiting political advertising during election campaigns (Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 C.L.R. 106).

79. Fudge, J., “The Canadian Charter of Rights: Recognition, Redistribution and the Imperialism of the Courts” in Campbell, T., Ewing, K.D. & Tomkins, A., eds., Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001) 335 at 351 Google Scholar.

80. O’Connor, J. in Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614 at 632 Google Scholar.

81. Non-problematic cases include: where a constitutional right has been limited by the direct action of a government agency (Brown v. Board of Education of Topeka (1954) 347 U.S. 483), and; where legislation is the direct source of a constitutional infringement (RJR-Macdonald v. Attorney General of Canada et al, supra note 78).

82. For example, in Douglas/Kwantlen Faculty Assn. v. Douglas College (1990) 3 S.C.R. 570, the Supreme Court of Canada considered whether a British Columbia community college was included in the term “government.” Taking into account the control exercised over the college by the government, including the power of the education minister to appoint its board of governors, it answered this in the affirmative. See also Lebron v. National R. R Passenger Corp. (1995) 115 S.Ct. 961.

83. See Burton v. Wilmington Parking Authority (1961) 365 U.S. 715 for the position that a public body which has not directly committed any constitutional violation may nonetheless be liable for breaches of constitutional rights carried out by a private actor. In that case, the U.S. Supreme Court held that the Fourteenth Amendment applied where the owner of a private restaurant refused to serve blacks as the (public) parking authority who leased the restaurant has “so far insinuated itself into a position of interdependence’’ (per J. Clark at 725) with the owner that it was equally liable in constitutional terms.

84. McKinney v. University of Guelph, (1990) 76 D.L.R. (4th) 545 at 639 (per La Forest J.).

85. (1978) 436 U.S. 149.

86. Ibid. at 164 per Rehnquist J.

87. DeShaney v. Winnebago County Dept. of Social Services (1989) 109 S.Ct. 998 at 1003, per Rehnquist C.J.

88. Supra note 74.

89. “While in political science it is probably acceptable to treat the courts as one of the three branches of government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action.” Ibid. at 196, per McIntyre J.

90. Ibid.

91. See New York Times v. Sullivan (1964) 376 U.S. 254.

92. Weinrib, L.E. & Weinrib, E.J., “Constitutional Values and Private Law in Canada” in Friedmann, D. & Barak-Erez, D., eds., Human Rights in Private Law (Oxford and Portland, OR: Hart Publishing, 2001) 43 at 43 Google Scholar.

93. (1994) 120 D.L.R. (4th) 12.

94. For example, in Marsh v. Alabama, (1946) 326 U.S. 501 it was held that whereas a company-owned town had opened up its property for public use, it was performing a public function, and so was barred by the first amendment from prosecuting distributors of religious pamphlets.

95. (1997) 151 D.L.R. (4th) 577 [hereinafter Eldridge].

96. Supra note 74.

97. The contrast here is with the same hospital’s decision to institute a mandatory retirement scheme which was seen as internal to the hospital’s management.

98. (1928) 276 U.S. 272. Here, the Virginia legislature was faced with a threat to the State’s apple industry from a plant disease which was spread from cedar to apple trees. Its response was to enact legislation empowering, upon petition of the apple tree owners to a State official, the destruction of cedar trees growing close to apple orchards if they were found to be infested with the disease. The cedar tree owners alleged that this was a violation of the “takings clause” of the U.S. Constitution.

99. (1998) 50 C.R.R. (2d) 1.

100. Beatty, D., “Constitutional Conceits: The Coercive Authority of Courts” (1987) 37 U.T.L.J. 183 at 190 Google Scholar.

101. Krotoszynski, R.J. Jr., “Back to the Briarpatch: An Argument in Favor of Constitutional Meta-analysis in State Action Determinations” (1995) 94 Rev., Mich. L. 302 at 345: Google Scholar This is because courts “would be put to the burden of explaining their [determinations] with particularity and care.” See also Glennon, R.J. Jr. & Nowak, John E., “A Functional Analysis of the Fourteenth Amendment “State Action” Requirement” (1976) Rev., Sup.Ct. L. 221 Google Scholar.

102. Krotoszynski, ibid. at 345.

103. Elliot, R. & Grant, R., “The Charter’s Application in Private Litigation” (1989) 23 Rev., U.B.C.L. 459 at 476 Google Scholar.

104. Weinrib & Weinrib, supra note 92 at 72.

105. See Beatty, D., “Canadian Constitutional Law in a Nutshell” (1998) 36 Rev., Alta. L. 605 Google Scholar, who argues that had the search for “inherently governmental actions” been consistently applied, for example, between Stoffman and Eldridge, or between Dolphin Delivery and Eldridge, then this would have had, for him, the beneficial effect of extending the Charter’s protection to, in the first case, the providers of medical services as well as their recipients and, in the second, to show that “judges and courts are the vehicles the legislature has chosen to deliver its system of dispute resolution.”

106. Slattery, B., “Legislation” (1985) 63 Rev., Can. Bar 148 at 161 Google Scholar.

107. Ibid.

108. Raday, F., “Privatising Human Rights and the Abuse of Power” (2000) XIII Can. J. L. & Jur. 103 at 104 Google Scholar.

109. Shelley v. Kraemer (1948) 334 U.S. 1 [hereinafter Shelley].

110. Ibid.

111. Seidman, L.M. & Tushnet, M.V., Remnants of Belief: Contemporary Constitutional Issues (New York: Oxford University Press, 1996) at 61 Google Scholar. See also See Tribe, L.H., American Constitutional Law, 2nd ed. (New York: Foundation Press, 1988) at 1697 Google Scholar.

112. Evans v. Abney, supra note 74.

113. Tushnet, M., “Living with a Bill of Rights” in Gearty, C.A. & Tomkins, A., eds., Understanding Human Rights (London: Mansell, 1996) 3 at 19 Google Scholar, n. 29.

114. See, e.g., Quint, P.E., “Free Speech and Private Law in German Constitutional Theory” (1989) 48 Rev., Mary. L. 247 Google Scholar, who argues (at 272) that the Shelley v. Kraemer has a reasonably tight ratio and that the Fourteenth Amendment applied here because the restrictive covenants performed the “public function of zoning.”

115. See Calabresi, S.G., “The Crisis in Constitutional Theory” (1997) 83 Rev., Va. L. 247 at 256 Google Scholar.

116. See Tribe, , supra note 111 at 1697–98 Google Scholar, and; Henkin, L., “Shelley v. Kraemer: Notes for a Revised Opinion” (1962) 110 Rev., U. Pa. L. 473 Google Scholar.

117. As Tushnet remarks (supra note 113), these are “extremely difficult” distinctions to draw, and should also be located in historical context: Shelley coming just as the Court was awakening to the problem of official racial discrimination in the post-war years (see also Sweatt v. Painter (1950) 339 U.S. 629 & McLaurin v. Oklahoma State Regents (1950) 339 U.S. 637); whereas by 1970, when Evans v. Abney (supra note 74) was decided, there were already signs of retrenchment reflecting the mood that formal equality had perhaps gone far enough. To the objection that these points are merely speculations, I would respond that they are no less speculative than attributing, for example, concerns of zoning to the minds of the Shelley court, and that they are at least speculations with considerable theoretical and empirical support.

118. Macklem, P., “Constitutional Ideologies” (1988) 20 Ottawa L. Rev. 117 at 133 Google Scholar.

119. Ibid. at 131.

120. Ibid. at 135.

121. Ibid. at 134.

122. Hutchinson & Petter, supra note 15 at 290.

123. See Slattery, supra note 106 at 153.

124. See, e.g., Slaight Communications Inc. v. Davidson (1989) 59 D.L.R. (4th) 416.

125. See, e.g., McKinney, supra note 84.

126. Cf. majority judgment of Rehnquist, C.J. and Blackmun, J.’s dissent in DeShaney, supra Google Scholar note 87.

127. For discussion of how these ideal-types inform and underpin the Supreme Court of Canada’s jurisprudence on corporations” constitutional defences to convictions for regulatory offences, see Tollefson, C., “Ideologies Clashing: Corporations, Criminal Law and the Regulatory Offence” (1991) 29 Osgoode Hall L.J. 705 Google Scholar.

128. Supra note 93.

129. Barak, A., “Constitutional Human Rights and Private Law” in Friedmann, & Barak-Erez, , eds., supra note 92 at 19 Google Scholar.

130. Hill v. Church of Scientology (1995) 126 D.L.R. (4th) 129.

131. Lessard, H., Ryder, B., Schneiderman, D. & Young, M., “Developments in Constitutional Law: the 1994-95 Term” (1996) Sup. Ct. L. Rev. (2d) 81 at 130 Google Scholar.

132. Supra note 74 at 189.

133. Ibid. at 190.

134. Lessard et al. suggest that a classical liberal approach underpins both Dagenais and Hill: “(thinking about individuals in the classical liberal sense, as having the proverbial fence of privacy erected around them, helps to understand the different results in these two cases. In the context of a criminal trial (as in Dagenais), the accused is presumed to have lost those rights of dignity and privacy which attach to him or her in private civil society. Having been implicated in the criminal process, individual rights are circumscribed and the protection of reputation lost to exigencies of the open court. Yet, in the usual case of a suit for defamation (the Hill situation), the individual is presumed not to have lost the semblance of privacy and regard for reputation which attaches to the individual.” Supra note 131 at 130-31.

135. See Oliver, D., “Common Values in Public and Private Law and the Public/Private Divide” [1997] Pub. L. 630 Google Scholar.

136. See Weinrib & Weinrib, supra note 92 at 72.

137. See Gearty, C.A. & Ewing, K.D., The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (Oxford: Oxford University Press, 2000)Google Scholar.

138. Eldridge, supra note 95 at 593 (per La Forest J). La Forest further stated (at 602) that “the fact that the Hospital Insurance Act does not ex Pressly mandate the provision of sign language interpretation does not render it constitutionally vulnerable. The Act does not, either ex Pressly or by necessary implication, forbid hospitals from exercising their discretion in favour of providing sign language interpreters.”

139. Ibid. at 607.

140. Ibid. at 610.

141. Beatty, , supra Google Scholar note 105.

142. See Stoffman, supra note 74; Lloyd Corp. v. Tanner, supra note 74 and McKinney v. University of Guelph, supra note 84; Hudgens v. NLRB (1976) 424 U.S. 507; San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, supra note 55.

143. Eldridge, supra note 95 at 603.

144. Macklem, supra note 118 at 137.

145. Santos, supra note 5 at 363.

146. It is important to note that pluralist liberalism therefore may, and does, side with classical liberalism in finding that the state is oppressive to freedom in individual cases (see Hutchinson, A.C., “Money Talk: Against Constitutionalizing (Commercial) Speech” (1990) 17 Can. Bus. L. J. 2 at 5 Google Scholar). It is this dualism which runs through the constitutional application discourse, and which shows how within every apparently expansive holding, in terms of crossing the formal threshold, lies the potential for its reverse.

147. The European Convention on Human Rights would appear to be unpromising ground on which to build an account of the broader application of human rights vis-à-vis private parties. It is an international treaty binding only on the contracting states to which it is specifically addressed; applications brought against private parties would be inadmissible ratione personae (see Harris, D.J., O’Boyle, M. and Warbrick, C., Law of European Convention on Human Rights (London: Butterworths, 1995) at 21 Google Scholar). However, despite this obvious objection to its direct application against private parties, some commentators speak approvingly of the Drittwirkung (or third party application) of the Convention (see Clapham, A., “The “Drittwirkung” of the Convention” in Macdonald, R.St.J., Matscher, F. & Perzold, H., eds., The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff 1993) 163 Google Scholar, and Drzemczewski, A.Z., European Human Rights Convention in Domestic Law: A Comparative Study (Oxford: Clarendon Press, 1983) at 199–228 Google Scholar). This reflects the reality, as the following text makes clear, that the European Court of Human Rights is the author of now a quite developed jurisprudence on the Convention’s relevance in disputes between private parties.

148. Series A, vol. 247-C, (1995) 19 E.H.R.R. 112.

149. Ibid. at para. 26.

150. Although on the merits, the Court found for the UK on all counts.

151. Thus there was no practical difference between this case and the Court’s previous decision in Campbell & Cosans v. UK, Series A, vol. 48, (1982) 4 E.H.R.R. 293. concerning corporal punishment in publicly funded state schools; see also the Opinion of the Commission in Y v. UK, Series A, vol. 247-A.

152. Young, James and Webster v. United Kingdom, Series A. vol. 44, (1981) 4 E.H.R.R. 38. See also Sibson v. UK, Series A, vol. 258-A. Cf. Lavigne v. OPSEU (1991) 81 D.L.R. (4th) 545. In this case, the Supreme Court of Canada had found that the Charter applied to an agency shop agreement because the employer was public (i.e. the provincial government). However in obiter, La Forest J. stated that where the employer was non-governmental, such agreements would be consensual, with legislation authorising them merely amounting to the legislature’s permission. Ibid. at 618.

153. Lüth case (1958) 7 BVerfGE 198.

154. Ibid. (translated in Kommers, D.P., The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. (Durham, NC: Duke University Press, 1997) at 355 Google Scholar).

155. Series A, vol. 30, (1979-80) 2 E.H.R.R. 245.

156. Sunday Times, ibid. at para. 43. See also Observer and Guardian v. UK, (1995) 20 E.H.R.R. 442, where the UK government had been granted an injunction against the publication in the applicant newspapers of excerpts from the book Spycatcher. The basis of the injunction was the supposed breach of the common law duty of confidence owed by the author to his former employers, the government. What is noteworthy is that the Court stressed (at para. 51) that what was at issue here was “solely … the legal principles upon which the injunctions were granted.” See also Tolstoy Miloslavky v. UK, (1995) 20 E.H.R.R. 442.

157. Kommers, supra note 154 at 49.

158. Markesinis, B.S., A Comparative Introduction to the German Law of Torts, 3rd ed. (Oxford: Clarendon Press, 1994) at 355–56 Google Scholar.

159. Series A., vol. 139, (1991) 13 E.H.R.R. 204.

160. Ibid. at para. 32. However, the Court also stated (at para. 34) that this was an obligation “as to measures to be taken and not as to results to be achieved.” As such, the Court found that Austrian authorities had taken reasonable and appropriate measures to secure the applicants their rights.

161. X and Y v. The Netherlands, Series A. vol. 91, (1986) 8 E.H.R.R. 235, at para. 23. See also Marckx v. Belgium, Series A. vol. 31, (1979) 2 E.H.R.R. 330 where the Court applied the Convention in the context of legal issues in the parent-child relationship. Here, it found that Article 8 had been violated when Belgian law refused to recognise a child born outside a marriage relationship as the full daughter of her mother, referring to the state’s obligations, in determining a domestic legal regime for parent-child ties, to ensure respect for family life.

162. Airey v. Ireland, Series A., vol. 32, (1979-80) 2 E.H.R.R. 305.

163. Quint, supra note 114 at 347.

164. See Kommers, , supra note 154 at 34–38 Google Scholar.

165. Beatty, D. Constitutional Law in Theory and Practice (Toronto, ON: University of Toronto Press, 1995) at 134 CrossRefGoogle Scholar.

166. Ibid.

167. Hunt, M., “The “Horizontal Effect” of the Human Rights Act” [1998] P.L. 423 at 438 Google Scholar.

168. van der Walt, J., “Blixen’s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neo-Colonialism” (2002)Google Scholar [unpublished].

169. Clapham, , supra note 26 at M353 Google Scholar.

170. Barak, A., “Constitutional Human Rights and Private Law” (1996) 3 Rev. Con. Stud. 218 at 258 Google Scholar.

171. Raday, supra note 108 at 118.

172. Santos argues that the state-civil society distinction does not necessarily deny, consistent with the LAW model, that there are other forms of power operating in society. However, where this does overlap with classical liberalism is that placing these in civil society, “convert[s] them into factic powers with no autonomous legal base and, in any case, without any political character” (supra note 5 at 97).

173. Macklem, supra note 118 at 133.

174. X and Y v. The|Netherlands, supra note 161.

175. Kommers, supra note 154 at 372.

176. Ibid. at 374-75.

177. (1969) 25 BVerfGE 256 (translated in Kommers, ibid. at 372).

178. Ibid. at 373.

179. van der|Walt, supra note 168 at 11.

180. Ibid.: “But was there ever a political goal that was pursued purely politically? Can an economic boycott really be as purely political as the Lüth decision seems to aver?”

181. Ibid.

182. See Currie, D.P., The Constitution of the Federal Republic of Germany (Chicago and London: University of Chicago Press, 1994) at 192–201 Google Scholar.

183. See, e.g., Mephisto (1971) 30 BVerfGE 173 (translated in Kommers, supra note 154 at 427) & Princess Soraya (1973) 34 BVerfGE 269 (discussed in Barak, supra note 18 at 251). Accordingly, we can see that the LAW model can also display the disordering features of internal legal pluralism.

184. We can amplify this point by reference to the South African Constitution of 1996 which is of interest as it potentially develops the practical scope of the LAW model. Reflecting the ANC’s negotiating position that the Constitution should guard against the duplication of the formal divisions of apartheid in South African civil society, the Bill of Rights contains a list of social and economic rights, including the rights to adequate housing, access to health services, and to a basic education, (see Klug, H., Law, Globalism and South Africa’s Political Reconstruction (Cambridge: Cambridge University Press, 2000) at 90 Google Scholar). This opens up the prospect of constitutional review requiring the state not just to protect the negative freedoms associated with the individual’s private sphere against encroachments from whatever provenance, but now to enact positive measures to ensure a minimum level of social protection, including (indeed especially) where the threat to that protection originates from non-state actors.

However, this apparently stronger form of the LAW model is subject to the same concerns outlined in the text. In particular, its capacity to advance social democratic constitutional politics must be measured against the concrete record. As Davis et al. point out (supra note 25 at 521), the classification of civil and political rights as essentially negative, with social and economic rights correspondingly positive, is misplaced as each set has both (what they describe as) an atomistic and social dimension—one emphasising the individual’s disconnection from society, the other his or her interdependence. The key question in assessing the South African courts’ social democratic prospects is which dimension receives the relatively greater emphasis. Their reading of the jurisprudential record to date is that the courts have exhibited “a fear of the social dimension of all rights.” Ibid. at 522. For example, in the case of Soobramoney v. Minister of Health (KwaZulu-Natal) (1998) (2) S.A. 958 (CC), the Constitutional Court rejected a claim that the S. 27 (3) right not to be refused emergency medical treatment entitled a patient to renal dialysis, the availability of which was limited by health sector resources. This approach, which they find in other cases, and other jurisdictions (their analysis extends to Canada and Israel) leads them to the conclusion that courts adjudicating social and economic rights for the most part “emphasize the atomistic over the social dimensions.” Ibid. at 522.

The recent case of Government of the Republic of South Africa v. Grootboom (2001) (1) SA 46 (CC) presents an interesting counterpoint to the above discussion. Here, the Constitutional Court held that the South African Government had failed to fulfil its obligations under the S. 26 right of access to housing in a complaint brought by a group of homeless people who “lived in appalling conditions” and had been evicted from land on which they had erected makeshift dwellings. The Court further ordered that the state “devise and implement within its available resources a comprehensive and co-ordinated programme progressively to realise the right of access to adequate housing.” The case has been hailed as a breakthrough, both in terms of the Court’s raising the standard of review from rationality to reasonableness, and also as embodying a commitment to a robust substantive conception of equality (see de Vos, P., “Substantive equality after Grootboom: the emergence of social and economic context as guiding value in equality jurisprudence”: http://web.uct.ac.za/depts/lrgru/equapaps/devos.pdf)Google Scholar.

However, there may be good grounds for agreeing with Mark Tushnet that the Grootboom case shows only a weak commitment to social democratic constitutional politics: Tushnet, M., “The issue of state action/horizontal effect in comparative constitutional law” (2003) 1 Int’l J. Con. L. 79 at 89 Google Scholar. (This reflects Tushnet’s view that in the political context of post-apartheid South Africa’s need to establish credibility with international investors, despite the apparent boldness of the constitutional text, its actual commitment to social democracy is necessarily “ambivalent” (ibid.)). We can ask how far the case goes in reordering private power, whose unconstrained operation is arguably the greater contribution to homelessness. As with the German cases discussed in the text one plausible answer is not very far, as Grootboom leaves in place the deep structure of thought associated with the ASI model. The state is still the primary bearer of constitutional obligations—there is no direct constitutional action, for example, to be directed to the private building sector. Moreover, the reason why the Court was readier to accept the argument in part here, rather than, e.g., in Soobramoney, may be explicable less by its embracing the social dimension of rights than the class of complainers before it. As in our reading, e.g., of Shelley and McKinney, the key factor here may be what political values the Court is most prepared to protect and here, in the context of post-apartheid politics (both to an internal and external audience), the continuing presence of a large underclass may rank higher than the limited availability of renal dialysis machines. On this account Grootboom stands for a formal, not a substantive, view of equality: what is being addressed is the discrimination against those of the lowest social means with respect to the provision of the most basic of public goods (cf. Brown v. Board of’Education of ‘Topeka (1954) 347 US 483). Accordingly, Grootboom itself is no guarantee of an extension of rights above the formal minimum, and certainly not to the extent of challenging the structural conditions under which such an underclass exists (indeed, other aspects of the Court’s jurisprudence suggest that the atomistic mode is prevailing elsewhere: see Tushnet, ibid. at 82-83). Moreover, to the extent that constitutional litigation is becoming the principal forum for ventilating political disputes, there is the attendant danger that the perception of some progress at the level of adjudication may entrench what is still a very low level of subsistence as constitutionally legitimate, and so will demobilise other political constituencies that may provide a better prospect of effecting significant social reform. (For the argument that a limited number of constitutional victories may ultimately have hindered the emancipation of the majority of blacks in the U.S., by reinforcing a mistaken perception that equality had been achieved, see Nan, C.J., “Adding Salt to the Wound: Affirmative Action and Critical Race Theory” (1993/4) 12 L. & Ineq’y 553)Google Scholar.

185. Vriend, supra note 99 at 31 (per J., Cory)Google Scholar.

186. Jenson, J. & de Sousa Santos, B., “Introduction: Case Studies and Common Trends in Globalizations” in Jenson, J. & de Sousa Santos, B., eds., Globalizing Institutions: case studies in social regulation and innovation (Aldershot, UK: Ashgate, 2000) ch. 1 at 19 Google Scholar.

187. See Schneiderman, D., “Constitutionalizing the Culture-Ideology of Consumerism” (1998) 7 Soc. & Leg. Stud. 213 Google Scholar.

188. As Santos puts it: “the conversion of the public place into the exclusive site of law and politics performed a crucial legitimating function by obscuring the fact that the law and politics of the capitalist state could only operate as part of a broader political and legal configuration in which other contrasting forms of law and politics were included” supra note 5 at 368.