Towards a Less Woolly Conception of Horizontal Effect

Abstract

There are four key elements of the horizontal effect of constitutional rights of which I take stock in the four sections of this paper: 1) the law is everywhere; 2) private spheres and private law are as subject to the normative demands of constitutional law as any other societal sphere or any other sphere of law; 3) the effect of constitutional law on private law is as direct as it is on any other sphere of law; and 4) all human conduct, however private, has some degree of “public function.” In the unpacking of these four elements, I rely repeatedly on an elementary but profound Rawlsian characterization of political-liberal societies to dispel any Orwellian tones that any of them may seem to raise. I then end with a political-historical reflection — in dialogue with Joel Bakan and Sujit Choudhry’s contribution to this special issue — on the importance of cleaning up the conceptual disaster in the horizontal effect jurisprudence developed in Lüth and Dolphin.