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What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

Published online by Cambridge University Press:  20 July 2015

Oliver Gerstenberg
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In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 1 , January 2004 , pp. 61 - 81
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Copyright © Canadian Journal of Law and Jurisprudence 2004

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References

Paper was presented at the ELRC at Harvard Law School in November 2003. For comments on this paper I would like to thank Grainne de Burca, Daniela Caruso, Hugh Collins, Colin Harvey, Damian Chalmers, Joanne Scott—and in particular Joshua Cohen, Frank Michelman and Charles F. Sabel. Thanks also to Richard Bronaugh for his patience and instructions during the complex editing process. The usual disclaimer applies.

1. With apologies to Italo Calvino.

2. These were the facts in the European Court of Human Rights’ recent decision in Case of Appleby and Others v. The United Kingdom (44306/98), Up. ECtHR 06 May 2003.

3. Michelman, Frank, “Liberties, Fair Values, and Constitutional Method” in Stone, Geoffrey, Epstein, Richard & Sunstein, Cass, eds., The Bill of Rights in the Modern State (Chicago, IL: The Chicago University Press, 1992) 91 Google Scholar, with reference to Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1971)Google Scholar.

4. On the idea of a protective function, see now Michelman, Frank, “The Protective Function of the State in Constitutional Law” (Paper presentation) Conference on European and American Constitutionalism (May 2003)Google Scholar [unpublished, preliminary draft Aug. 2003]. “Protective function” is a direct translation of the terminus technicus in German constitutional law of “Schutzfunktion”.

5. The title of my paper is, of course, prompted by the subtitle of Sunstein, Cass’s book Designing Democracy. What Constitutions Do (Oxford: Oxford University Press, 2001)Google Scholar.

6. On “unlocking,” see Sunstein, Ibid. at 230 (quoting the South-African’s Constitutional Court’s important Grootboom-case).

7. On the idea of reflective disequilibrium (which, evidently, draws on Rawls’ notion of a reflective equilibrium) cf. Gerstenberg, Oliver & Sabel, Charles F., “Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?” in Joerges, Christian & Dehousse, Renaud, eds., Good Governance in Europe’s Integrated Market (Oxford: Oxford University Press, 2002)Google Scholar.

8. Thus the ECtHR’s emphasis in Hatton and Others v. The United Kingdom from the 08 July 2003.

9. This emphasis is, of course, both Dworkinian and Rawlsian. For a recent restatement by Dworkin, , see his “Response to overseas commentators” (2003) 1 Int’l J. Con. L. 651 Google Scholar.

10. I am here, of course, building on Rawls’ notion of the “circumstances of justice”.

11. Equally, the familiar idea that all what is required is a “balancing” of rights seems inadequate, as this idea suggests that what is at issue is merely to find a compromise between competing policies (as opposed to rights).

12. Compare Art. 1(3) of the German Grundgesetz with the second sentence of § 1 of the Fourteenth Amendment of the US Constitution. Cf. also § 8 (1) of the Constitution of the Republic of South Africa (1996): “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of the state.”

13. Smelser, Neil J. & Baltes, Paul B., eds., International Encyclopedia of the Social & Behavioral Sciences (New York: Elsevier, 2001)Google Scholar s.v. “Classical Legal Thought” and “Legal Formalism” (written by Duncan Kennedy); Kennedy, Duncan, “Two Globalizations of Law & Legal Thought: 1850—1968” (2003) 36 Suffolk U. L. Rev. 631 Google Scholar; Kennedy, Duncan, “The Disenchantment of Logically Formal Legal Rationality or Max Weber’s sociology in the genealogy of the contemporary mode of Western legal thought” (2002)Google Scholar [unpublished].

14. Michelman, Frank, “W(h)ither the Constitution?” (2000) 21 Cardozo L. Rev. 1063 at 1076 Google Scholar.

15. BVerfGE 7, 198. There is, of course, more than ample literature on this case. The reconstructions I learnt most from are: Kuebler, Friedrich, “Lüth: eine sanfte Revolution” (2001)Google Scholar Kritische Vierteljahresschrift fuer Gesetzgebung und Rechtswissenschaft at 313ff; Grimm, Dieter, “The Impact of Fundamental Rights on Private Law” (1997) [unpublished, archived at Harvard Law School]Google Scholar; idem, “Die Meinungsfreiheit in der Rechtsprechung des Bundesverfassungsgerichts” (1995) 48 Neue Juristische Wochenschrift at 1697ff; idem, Die Verfassung und die Politik. Einsprueche in Stoerfaellen (Muenchen: CH Beck, 2001).

16. The standard metaphor is that of “permeation”. See Barak, Aharon, “Constitutional Human Rights and Private Law” in Friedmann, Daniel & Barak-Erez, Daphne, eds., Human Rights in Private Law (Oxford: Hart Publishing, 2001) 13 at 29 Google Scholar.

17. If there was a world without principles and constitutional values, we still could, in such a world, have an internally coherent private law system, according to the approach I am describing here.

18. Supra note 9 at 30.

19. Ibid. at 29.

20. Ibid. at 30.

21. Ibid.

22. Ibid. at 31. But notice also his retractation in the somewhat dark formulation at 29: “Private law is the ex Pression of restrictions placed on human rights to realise human rights while safeguarding public interest.”

23. Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1997) at 269 Google Scholar.

24. Ibid. at 252.

25. Dworkin, Ronald, Book Review of The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory by Coleman, Jules (2002) 115 Harv. L. Rev. 1655 Google Scholar.

26. Supra note 16 at 270. The backbone of his argument is that “legal systems however evil are law in a preinterpretive sense” (such as Nazi-law). Against Dworkin he argues that “principles” (considered necessary both to identify and to justify law) may be simply “iniquitous” and as such carry no justifying force. Dworkin’s duplique, of course, is that interpretation itself is a practice shot through with (moral) value.

27. Dworkin, Ronald, “Comment” in Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law, Gutmann, Amy, ed., (Princeton, NJ: Princeton University Press, 1998) 115 at 117 Google Scholar. Cf. also Dworkin, , Law’s Empire (Cambridge, MA: Harvard University Press, 1987) at 225 Google Scholar.

28. Cf. Frank Michelman, “The Constitution as a Legitimation Contract” [unpublished]; but see also, to the same effect, Gerstenberg, & Sabel, , supra note 7 at 289 Google Scholar.

29. Cf. Tushnet, Mark, “The issue of state action / horizontal effect in comparative constitutional law” in (2003) 1 Int’l J. Con. L. 79 at 93 Google Scholar. Thus, according to Tushnet, the idea is that the same constitutional norms bind everyone, public and private, but that some additional norms—taking private autonomy into consideration—weigh against full-scale application of the basic norm to private actors; constitutional norms may or may not outweigh private autonomy. But on the other hand, Tushnet’s approach remains comfortably internal to the traditional vocabulary.

30. Rawls, John, Political Liberalism (New York: Columbia University Press, 1996) at 137 Google Scholar.

31. Moore, Mark H., “Introduction to Symposium: Public Values in an Era of Privatisation” (2003) 116 Harv. L. Rev. 1212 at 1217 Google Scholar.

32. Supra note 2 at ¶ 34.

33. Ibid. at ¶ 35.

34. Ibid. at ¶ 36.

35. Ibid. at ¶ 37.

36. Ibid. at ¶ 38.

37. Ibid.

38. Ibid. at ¶ 41.

39. Ibid. at ¶ 47.

40. Ibid.

41. Ibid.

42. Ibid. at ¶ 39.

43. Ibid. at ¶ 47.

44. Ibid. at ¶ 48.

45. Ibid.

46. Ibid. at ¶ 48.

47. Ibid., see dissenting judgment.

48. Ibid.

49. Ibid.

50. Ibid.

51. Meiklejohn, Alexander, Political Freedom (New York: Harper, 1960)Google Scholar.

52. For discussion, cf. Cohen, Joshua, “Freedom of Ex Pression” (1993) 22 Phil. & Pub. Affairs 207 Google Scholar; Bollinger, Lee & Stone, Geoffrey, eds., Eternally Vigilant: Free Speech in the Modern Area (Chicago, IL: University of Chicago Press, 2002)Google Scholar.

53. Rawls, supra note 23 at 15 et passim.

54. Supra note 2 at ¶ 38.

55. Schauer, Frederick, “First Amendment Opportunism” in Bollinger, & Stone, , eds., supra note 45 at 174ffGoogle Scholar.

56. Ibid. at 194ff.

57. 66 S.Ct. 276 at 278.

58. 447 U.S. 74.

59. Ibid. at 93.

60. Ibid.

61. As a defender of the libertarian approach, Epstein, Richard himself acknowledges: to deny the possibility of argument across cultures is to deny them within cultures, or indeed between individual persons. (Skepticism and Freedom, A Modern Case for Classical Liberalism (Chicago, IL: University of Chicago Press, 2003) at 81)Google Scholar. It is (for me) difficult to see how the sweeping force of this Davidsonian argument, once unleashed, can be reconciled with his case for what he calls classical liberalism.

62. For this—Rawlsian—point cf. Nagel, Thomas, “Rawls and Liberalism” in Freeman, Samuel, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003) 62 at 68 Google Scholar.

63. Cf. from respectively different perspectives, Newman, Peter, ed., The New Palgrave Dictionary of Economics and the Law, vol. 2 (New York: Stockton Press, 1998)CrossRefGoogle Scholar s.v. “law-and-economics from the perspective of critical legal studies” (written by Duncan Kennedy). Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002) at 44f CrossRefGoogle Scholar; Sunstein, Cass, “State Action is Always Present” (2002) 3 Chi. J. Int’l L. 465 Google Scholar; see also generally Holmes, Stephen & Sunstein, Cass, The Costs of Rights: Why Liberty Depends on Taxes (New York: W.W. Norton & Company, 1999)Google Scholar.

64. Kennedy, , “The Disenchantment…“ supra Google Scholar note 6.

65. On the idea of institutions as distancing device, see Raz, Joseph, “On the Authority and Interpretation of Constitutions” in Alexander, Lawrence, ed., Constitutionalism: Philosophical Foundations 152 at 190f (Cambridge: Cambridge University Press, 1998)Google Scholar. But see also, Schelsky, Helmut, Die juridische Rationalität (Opladen: Westdeutscher Verlag 1980)CrossRefGoogle Scholar (= Vorträge. Rheinisch-Westfälische Akademie der Wissenschaften: Geisteswissenschaften. 247.), 17S.

66. Minow, Martha, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1990) at 310–11 Google Scholar.

67. Cf. the observation by Kant, (Metaphysische Anfangsgrunde der Rechtslehre, ¶ 62)Google Scholar that, given the spherical form of the world, the possibility of “exit” is limited, and we are ultimately forced to cooperate. For a related point cf. Rawls’ insistence on the “closedness” of society.

68. For similar intuitions, see, despite some difference between the positions, Sabel, Charles F. & Simon, William, “Destabilizing Rights. How Public Law Litigation Succeeds” Harv. L. Rev. Google Scholar [forthcoming] (idea that rights “destabilize” entrenched routines); Teubner, Gunther, “Contracting Worlds: The Many Autonomies of Private Law” (2000) 9 Soc. & Legal Stud. 399 Google Scholar. (idea that rights are irritants that perturb “discourses” get “translation” going between social systems); Gerstenberg, Oliver, “Private Law, Constitutionalism and the Limits of the Judicial Role” in Scott, Craig, ed., Torture as Tort (Oxford: Hart Publishing, 2001) 687 Google Scholar (idea that rights are stakes in a conflict-overarching argumentative game). But cf. also Michelman, F., “Justification (and Justifiability) in a Contradictory World” in Roland Pennock, J. & Chapman, John W., eds., Due Process: Nomos XXVIII (New York: New York University Press, 1986) 71 Google Scholar. (Idea that rights are neither a gun nor a one-man-show, but relational).

69. On this idea, cf. Unger, R., False Necessity (Cambridge: Cambridge University Press, 1987)Google Scholar.

70. On this idea, cf. Michelman, Frank, “Morality, Identity and Constitutional Patriotism” (2001) 14 Ratio Juris 253 Google Scholar.

71. Notice the difference of this question from the question Mark Tushnet is asking. According to him, the issue of “horizontal effect” can be seen as a benchmark of a country’s commitment to social democracy; we may even compare legal systems over the world along that axis. He takes as a starting point the idea that constitutional norms bind everyone, public and private, but that some additional norms, reflecting, weigh against the full-scale application of the basic norm to private actors. A constitutional norm’s horizontal effect, Tushnet says, is thus always controlled by counternorms which reflect the value of private autonomy and the force of which stands in an inverse relationship to the commitment to social democracy. The upshot of his proposed solution to the problem is that “[t]he weaker a system’s commitment to social democratic norms, the more expansive can the counternorms that weigh against the full direct horizontal effect.” Tushnet, supra note 29 at 93. While I agree with much what Tushnet says on liberal autonomy as a counternorm, I confess that I am not entirely convinced by this somewhat “mechanical” and sociological picture, and my suggestion is that we should disentangle the issue of the effect of constitutional norms on private law from the issue of social democracy altogether. A modern constitutional regime will—as I argued here—give rise to a “protective function” of the legal system to develop private law norms in the light of constitutional and human rights norms as context-sensitive pacemakers of reform. The addressee of, and agent behind, this protective function may be the (nation-) state, or, as increasingly so in Europe, new, network-like forms of governance. The current debate on the Europeanization of private law is a highly illustrative example for the (re-)modelling of the protective function beyond the nation state. We should not obscure freestanding and problem-specific analysis of the protective function by premising that analysis on the theory-laden question of whether a country’s scheme of statutory norms and of constitutional theories expresses a commitment to social democracy.

72. Respectively, Michelman, (following Habermas, J.), supra note 70 at 253Google Scholar; Dworkin, Ronald, “The Partnership Conception of Democracy” (1998) 86 Cal. L. Rev. 453 Google Scholar; Rawls, , supra note 30.Google Scholar

73. Slaughter, Anne-Marie, “A Global Community of Courts” (2003) 44 Harv. Int’l L. J. at 191ffGoogle Scholar.

74. Ibid. at 218.

75. Michelman, Frank, “Integrity-Anxiety” (2002) [unpublished, archived at Kennedy School of Government, Carr Center, Harvard University]Google Scholar.

76. I am, of course, aware of the allusion to Habermas’ and Apel’s concept of “Universalpragmatik” (perhaps not fully adequately rendered by “universal pragmatics”).

77. Cf. Putnam, Hilary, The Collapse of the Fact / Value Dichotomy and Other Essays (Cambridge, MA: Harvard University Press, 2002)Google Scholar; and also his earlier work, in particular, Reason, Truth and History (Cambridge: Cambridge University Press, 1981).

78. Cf. also Unger, Roberto’s notion of the “dirty little secret of jurisprudence” in What Should Legal Analysis Become? (New York: Verso 1996) at 72 Google Scholar.

79. Cf. also the “short list” of “some of the question” pulled together by Kennedy, David, “Boundaries in the Fields of Human Rights: The International Human Rights Movement: Part of the Problem?” (2002) 15 Harv. Human Rts J. at 101ffGoogle Scholar.