The Liberal Roots of Third-Party Effect Doctrines

(Basis for presentation and discussion)

 

by Georg Sommeregger[1]

 

Summary: The applicability of fundamental rights to relationships between private persons can be foreseen by the constitutional legislator. (Fundamental rights can also be horizontalized through concretization by the ordinary legislator).Doctrines of horizontality are discourses produced by the judge to justify the horizontal effect of fundamental rights in case of absence of textual horizontality.

The roots of doctrines of third-party effect is the architecture of the modern legal order. The democratic revolutions of 1776 and 1789 could not really solve the contradiction between the claim to popular rule and authority. The hierarchical form of the pre-revolutionary systems (the scheme of lord and ruled) was preserved, although rhetorically altered. Only this circumstance, or the division of public and private, gives the possibility to speak of horizontality and verticality.

The liberal discourse focussing solely on the depiction of free individuals potentially menaced by State authority cannot account for a legal model of horizontal application of fundamental rights. With fundamental rights seen as private liberties, disconnected from a possible role of the State, the State is confined to a passive role. State action is seen as negative and is sanctioned. Doctrines of horizontality (aka doctrines of third-party effects) on the contrary need to account for a positive role of State authorities in either creation of guarantee of individual rights.

 

Some examples of (judicial) approaches to horizontality of fundamental rights

 

Doctrines of third-party effect, aka doctrines of horizontality, are judicial doctrines that try to answer the question of the relationship between constitutional law and civil law (common law). Quite well known is the American State Action doctrine, according to which, in a litigation between private persons, the protection of fundamental rights is only triggered if a state involvement, or link, can be proven. State Action litigation is thus very much centred on the dichotomy and definition of the public and the private. The State Action doctrine is said to be a vertical doctrine because precisely private persons are not considered (directly) bound by the Constitution. The latter only protects in vertical constellations opposing the individual and State authority.

This is also the understanding of the most influential doctrine in a civil law context, the German doctrine of indirekte Drittwirkung (indirect third-party effect). According to it, fundamental rights do not apply directly (as such) to private law litigation, but civil law courts nevertheless have to take into account fundamental rights. Because of the idea that the constitution is an overarching supreme value system, and thus fundamental to all sub-fields of law, the civil judge must interpret civil law in the light of the fundamental rights.

 

Whereas the State action doctrine is rather a position of verticality, the doctrine of indirect third party effect, although sharing this position of verticality, goes beyond it in that it allows for effects of fundamental rights on civil law litigation.

 

Horizontality and Third-party effect: A vocabulary reflecting its liberal roots

 

Third-party effects are also known as horizontal effects. These two notions are however not exactly congruent. Third-party effect is the translation of the original German term Drittwirkung. It stands short for Drittwirkung der Grundrechte, or third-party effect of fundamental rights. Who is now the third party referred to, and what effects of fundamental rights? To answer this we have to go a bit further, both in scope and in history. The predominant interpretation of fundamental rights is the idea that they are negative entitlements, protecting the individual right-holder against encroachment by public authorities (extensions of the State). This relation between the individual and the State has been called vertical. This is in itself an interesting expression. I think that intuitively, more than a simple straight vertical line, it evokes and contains the notion of hierarchy. Historians have often represented the relationship of ruling and subjected classes in the shape of a pyramid.

Fig.1

This is a very old image, and firmly anchored in our mind. Asked to depict our contemporary democratic society, we would probably also draw a pyramid, on top of which we would place an authority, the State, and at its base the community of citizens. Those among us versed in political philosophy might think then of the basis of our present democratic system, which are social contract theories. Here, the pyramid is the result of the way the state of nature is overcome. By signing the hypothetical social contract, the free and equal men subject themselves to a single authority. For their conceptions of the social contract, the philosophers of the Enlightenment used already existing elements. They wrote in a given environment, and for a given purpose (Hobbes for example to answer the question whether or how it is possible to be a free man in the given political system of absolute monarchy). What they accomplished was a re-interpretation of authority, or the justification of authority. Authority is thus the key word. Some social contract theories helped to create a democratic legitimation for authority, the much older sources being god or charisma.[2]

 

Fig.2 (taken from a 1 dollar bill)[3]

 

Riddles of Modernity: Being ruled and being free

(Hierarchy as precondition of the vocabulary of horizontality and verticality)

 

The fact of the democratic re-interpretation of authority did not change the shape of the pyramid as such: it continues a tradition of thinking society in terms of hierarchy. This is not to say that the contractualist philosophers were not genuine spirits: given indeed the factual need of a government, the Rousseauvian General Will provided an original tool allowing to think that it is the People that govern. The cutting of the Kings head shifted the source of authority from God to the People. It created however a certain schizophrenia, which is still felt in those countries whose conception of the State and of individual rights derives from and stays close to the contractualist scheme. In France, the sovereignty of the legislator, formally conceived as the sovereignty of the people, made it difficult to accommodate minority dissent. It also shaped the discourse on individual rights: until recently, individual rights in France were solely conceived of as liberts publiques, i.e. liberties given to the individuals by the State. This is a tradition going back to Montesquieu, according to whom political liberty is the possibility to do what you ought to do,[4] which in the language of rights equals a right to do what the law permits. The notion of liberty is thus very firmly and openly linked to the State. The notion of (individual) right (corresponding in continental terminology to the German subjektives Recht, subjective right) is simply not very important in a conception of society which upholds the unity of the sovereign authority and the citizens in civil society.

fig.3: Social Contract and Civil society (system of public liberties[5])

 

Although there really is a public authority exerting power over the citizens, civil society is theorized as a community of free and equal men. But the old Aristotelian notion of koinonia politike (at the origin of our term civil society via the Latin translation) is here transformed. While with Aristotle civil society and polis (State) formed one unit, namely the community of free and equal men, in the state of nature,[6] the modern conception maintains this notion of civil society as a community of free and equal men, but creates authority as an artifice, and only after a break with the state of nature.[7]

fig.4: Aristotle

 

With the creation of the sovereign authority, producing the rift between authority and subjected citizens, a notion of hierarchy is introduced.[8] This is the precondition for the usage of the vocabulary of horizontality and verticality: the Aristotelian conception is intrinsically horizontal in that the community of free and equal men were called at the same time to rule and to obey. The rift between the State and the individual is however limited to this situation of subordination (which because of the construction of popular legitimacy is also not a real subordination, but a free decision of free men). But despite of this subordination, and the view of liberty as the right to do what you ought to do, the breaking with the State is not complete, because, in this view still, ltat, cest nous. Hence the schizophrenia (of being ruled and being free).

The State confined: the individual without the State

 

A different development has taken place in the Anglo-Saxon sphere, and lead to the individualist rights culture prevalent especially in the USA. Under the influence of the Anglo-Scottish philosophers like Ferguson (An Essay on the History of Civil Society, 1759) and Adam Smith (The Wealth of Nations, 1776) there is a new conception of society, opposed to the Aristotelian view of the political nature of man, and of the Contractualist view of a constructed sociality (against nature): the shifting of the civil society towards the activities of production and exchange, which used to be confined to the domestic sphere, implies a revision of the function of political authority: it is not on the sovereign any more that the existence of the social order depends. The social order comes about through interests and passions of individuals. The State is subsequently reduced to a role of regulator of the conditions of the civil society, but has lost its ethical significance. It is now in the private space of economic and cultural relations that the individual gets civilised, i.e. achieves human excellence, and not in the participation in political activity (as was the Aristotelian conception).[9]

fig.5: liberal model of private liberties

 

The private is not seen as a function of the public any more. It is only in this model that we can understand the notion of individual rights as negative rights against intrusion by the state.

 

The possibility of the question of directionality of fundamental rights

 

Apart from the differences between the model of liberty as public liberty (fig.3) and model of private liberty (fig.5) we find in both a division between a public and a private sphere. In this setting takes place the development of a differentiation between a set of rules for the dealings amongst branches of the State (the constitution), a set of rules regarding the relation between authorities and private persons (to be included or not in the constitution), and a set of rules to regulate interpersonal relationships (private law/ common law).

 

The fact of a hierarchically shaped distinction between public and private sphere, and the evolution of distinct sets of rules to govern the relationships of all actors, only this setting gives rise to the question of directionality of fundamental rights,[10] and subsequently theories of vertical and horizontal effect.

 

 

Answers to the question of directionality of fundamental rights

 

This shift of civil society (cf. the changing position of the private from figs. 4 over 3 to 5) and the resulting consequences for role and image of the State will also determine, to the largest extent, the answers given to the question of directionality.

 

1. The vertical position

 

The view that the sole addressees of fundamental rights are public authorities has gone unchallenged for a long time (this is the vertical position). In this view fundamental rights are individuals rights against the State (in the terminology of Jellinek: subjective public rights), meaning that the individuals are beneficiaries of the fundamental right (right-holders), and the public authorities are addressees of the fundamental rights (bound by them).[11]

 

 

Beneficiary (Right-Holder)

Addressee

Public Authorities (State)

no

yes

private person

yes

no

fig.6: Directionality of Rights: Vertical approach

 

2. Three meanings of horizontality of fundamental rights

 

It seems that the vertical scheme (as in fig.6) would allow as only alternative a horizontality of fundamental rights in the sense of an inclusion of private persons in the category of addressees of fundamental rights. The Constitution would also be binding for private individuals. That seemingly leads to a situation where in a relation between two private persons, at the same time as being beneficiaries of fundamental rights, the private persons are also potential addressees of fundamental rights.[12] The obligation of the State authorities stay the same.

 

 

beneficiary (right-holder)

addressee

private person a

yes

yes

private person b

yes

yes

Public authorities

no

yes

fig.7: Directionality of Rights: Horizontal schema (1)

According to this schema, individual A would be entitled, on the basis of a fundamental right FR, to demand a certain behaviour of individual B. Individual B would have the duty, in regard to the fundamental right FR, to adopt a certain behaviour towards A.[13]

 

But we have to be more precise. Concretely, we have to ask to what kind of reality the horizontal schema (as in fig.7) corresponds. It seems to me that one can distinguish three kinds of horizontality, of which only one is a situation where doctrines of horizontality come to play. These three kinds of horizontality differ because the real situations in which they occur are different.

 

a. Horizontality as philosophical claim: outside the court, and absence of horizontal norms

 

The first kind is a situation where an individual claims a fundamental right to x against another individual. He does so outside the court, an in absence of a provision that declares the fundamental right in question as horizontally applicable. This claim can be based on a moral or a religious conviction. It is a philosophical claim. As such, it appears to me to be pre-modern: it fits the Aristotelian schema described above (fig.4), in that it works without presence of the State. Instead, it evokes and works with an idea of natural liberty which would correspond to a pre-modern Aristotelian position. I think that it supposes unity of the state and civil society.

 

b. Horizontality as pre-litigation situation: Existing horizontal norms influencing individual behaviour

 

Let us now think of a situation where there exist textual dispositions that prescribe horizontal applicability for a fundamental right. No court case has however been started yet (fig.8).

Fig.8: Pre-litigation situation : Psychological schema

 

It becomes clear that the law-maker can horizontalize a fundamental right in two ways: the most direct way of reaching this result is for the creators of the constitutional text to foresee the horizontal application of fundamental rights; secondly, however, there is also the possibility that the ordinary legislator concretizes the fundamental right in the form of statutory law, thus giving it horizontal form (an example is anti-discrimination legislation). This second way is a quiet form of horizontality which is often not perceived as such, because horizontality is here intrinsic.

 

In this situation, i.e. in the presence of constitutional dispositions or statutory law that grants an individual right that is applicable in interpersonal relationships, an individual can foresee the probable judgement of the court, would he go to court. The sentence I have a constitutional right means here (differently from the inner belief described in point a.) that the individual is confident that in case of litigation he would win, i.e. that the court would grant him this constitutional right as a shield against the action of individual B. Individual B, on the other side, could anticipate the great chances to lose in court, and in anticipation not do what he usually would do (ex. make a racist last will). More than a philosophical, this is a psychological schema, which however takes horizontality as result from (constitutional or ordinary) legislative activity into account.

 

Both the philosophical claim to horizontality and the anticipatory behaviour because of existing textual horizontality are valid but they are not discussing doctrines of horizontality! Here is why:

 

c. Horizontality as judicial creation: doctrines of horizontality

 

Let us imagine now a situation where neither a constitutional text provision foresees the horizontal applicability of the fundamental right, nor is there statutory legislation which has horizontalized the fundamental right in question. The absence of a textual disposition alone is not an obstacle for the judge to apply the fundamental right horizontally. But if she does so, she needs to justify this application, or the taking into account of the fundamental right in a litigation between private persons. Doctrines of horizontality are these justificatory discourses.

We can now see why per definition doctrines of horizontality arise in a situation of litigation, why they presuppose litigation. Fig.9 tries to give a picture of this third kind of horizontality. It integrates the possibility of a situation where a court of civil law, contrary to the hypothesis that it wants to apply a fundamental right horizontally, refuses to do so. In this case the Constitutional Court (hypothesis of centralized judicial review) can impose on the civil courts to do so (and needs on his turn to justify this command).[14]

fig.9: Situation for doctrines of horizontality

 

It also tries to capture the relationship between judicial action and the action of the legislator. The legislator is free to concretize fundamental rights in the form of statutory law (an example is anti-discrimination legislation). According to some, the legislator has a duty to do so.[15] If however the legislator, in (the product of the concretization which is) the statute law, provides for a horizontal applicability of the fundamental right in question, then this is not horizontality as judicial doctrine. O. Pfersmann calls this additional horizontal effects.[16] Another, even more direct way of reaching this result is for the creators of the constitutional text to foresee the horizontal application of fundamental rights.[17] But also this situation does not warrant a doctrine justifying horizontal application.

 

What favours, or on the contrary obstructs, the emergence of third-party effect doctrines?

 

The three situations corresponding to three kinds of horizontality should thus not be confounded. I would like to come back now, as a last point, to the philosophical/ideological underpinnings of the debate on horizontality. I do think that they can help to explain why in certain legal orders doctrines of horizontality develop, and in others not. For example, given the shared ground position of verticality, what made the American Supreme court remain in a position of verticality only (the State action doctrine), while the German Constitutional Court went beyond it?

 

I think that the key is the role the different systems allow for, or assign to the State.

 

USA: The negative image of the State

 

I have suggested earlier on that the USA are in a cultural-political situation in which civil society has shifted to the private sphere and in which the division between Government and society is perceived as complete. The State is seen as a potential enemy of the natural liberty of the individuals. This is first visible on the level of language: it has almost become politically taboo to consider speaking about an active role of the State. A positive image of the state is absent, and consequently a positive or active role of the state is not welcomed. But the deep-level philosophical condition also has consequences in judicial practice: It fits this picture that the Supreme Court only sanctions state action, but not state non-action (omission). There is no duty of action on the part of the state recognized (see the DeShaney case[18]). On the contrary, it is a rhetoric that confines the role of the State to a passive one, where it is forbidden to act. This understanding prevents the evolution of jurisprudence in a direction which is now commonplace in Europe, and which acknowledges more openly a positive, or protective role of the state.

 

 

Third-party effect Doctrines need a positive ground

 

The German Federal Constitutional Court in principle shared the view of the Supreme Court that fundamental rights are negative rights, protecting the individual against intrusion by state authorities. This negative interpretation of fundamental rights warrants a purely passive attitude of the State. Any other position necessarily needed to justify a non-passive, thus active role. The only way to enable (and oblige) state authorities to adopt an active attitude for the benefit of individual interests was to justify it differently. In the Lth decision, the Court did so by resorting to the image of the Constitution as objective order of values. [19] This is giving fundamental rights, in addition to the acknowledged negative dimension, also a positive dimension, leading consequently to the legitimation of an active action of the State. There is a large consensus against taking this step in the USA.

 

In Lth, the Constitutional Court focuses on the obligations of the civil judge.[20] In a later line of jurisprudence, however, Constitutional courts started to focus on the eventual obligations of the legislator.[21]

 

The step from the negative to a positive interpretation of fundamental rights thus opened new perspectives for the justification of what in essence is enhanced human rights protection. This can be seen as an attempt to correct the negative consequences of a purely liberal interpretation of fundamental rights. But also the new discourses remain within, and work with the elements of the same liberal framework.

References used:

 

1. German Federal Constitutional Court, Lth, BVerfGE 7, 198, 1511958,

2. Constitutional Court of South Africa, Grootboom and others v Government of the Republic of South Africa and others, CCT38-00, 2192000,

3. Colliot-Thlene, Catherine, 'tat et socit civile', in: Raynaud, Philippe Rials Stphane, Dictionnaire de philosophie politique, Paris 1196,

4. Jellinek, Georg, System der subjektiven ffentlichen Rechte,

5. Jellinek, Georg, The Declaration of the Rights of Man and of Citizens, New York 1901 (1895)

6. Leisner, Walter, Grundrechte und Privatrechte, Mnchen 1960

7. Montesquieu, De lesprit des lois I, Paris

8. Pfersmann, Otto, Esquisse dune thorie des droits fondamentaux, in: Favoreu, Louis, Droit des liberts fondamentales, Paris 2002, 69-116

 

 



[1] e-mail: Georg.sommeregger@iue.it. If you want to photocopy this, feel free. Some of the thoughts contained in this paper are original.

[2] See Max Weber

[3] For further explanations, see http://www.niehs.nih.gov/kids/triviadollar.htm

[4] The exact quote is: Dans un Etat, cest--dire dans une socit o il y a des lois, la libert ne peut consister qu pouvoir faire ce que lon doit vouloir, et ntre point contraint de faire ce que lon ne doit pas vouloir. Montesquieu, De LEsprit Des Lois I, Paris , Livre XI, chap. III, p. 292.

[5] note: the private is a function of the Public.

[6] Aristotle, Nichomachean Ethics.

[7] Cf. Colliot-Thlene, Catherine, 'tat et socit civile', in: Raynaud, Philippe Rials Stphane, Dictionnaire De Philosophie Politique, Paris 1196, ..

[8] As compared to the Aristotelian scheme. As compared to the political regime prior to the Revolutions, one might say it was maintained (see above on hierarchy).

[9] Colliot-Thlene, Catherine, 'tat et socit civile',

[10] Jellinek, in Jellinek, Georg, The Declaration of the Rights of Man and of Citizens, New York 1901 (1895)posed the question in discussing the origins of the Rights of Man. But refer to Jellinek, Georg, System Der Subjektiven ffentlichen Rechte, for his concept of right that will most influence German thought on Drittwirkung. Cf. the detailed discussion in Leisner, Walter, Grundrechte Und Privatrechte, Mnchen 1960 , 1-15.

[11] As we have seen, this is still the position of the American Supreme Court in its state action doctrine. Also the German Federal Constitutional Court interprets fundamental rights as directed against the state, but only primarily and not exclusively as it resorts from the American position. (Lth, BVerfGE 7, 198, BVerfGE 7, 198, 15 1 1958, at ).

[12] Nota bene: it needs to be stressed that the individuals might invoke different fundamental rights to back their positions. It can thus get more complicated than a situation were individual A invokes an infringement by individual B of his fundamental right. Individual B might base his action equally on a his fundamental right.

[13] This is the situation for one fundamental right. Individual B, under duty from FR1, might however in the concrete situation invoke a FR2 in his favour. But this does not change the schema as such.

[14] This was the constellation of the Lth case (BVerfGE 7, 198, BVerfGE 7, 198).

[15] Idea of duty of protection of the state, or, more generally, of positive duties of the state. In this view, the state needs to create the legislation and procedural guarantees necessary to give effect to a fundamental right. For the idea of a positive dimension of fundamental rights, see below the section on indirect horizontal effect.

[16] Pfersmann, Otto, Esquisse dune thorie des droits fondamentaux, in: Favoreu, Louis, Droit Des Liberts Fondamentales, Paris 2002, 69-116, 108f.

[17] An example of this is the Austrian law (having constitutional status) on the protection of electronic data[reference], which in its article 1 explicitly introduces the right for each person to the secret of electronic data regarding her, completed by a disposition which allows one to invoke this fundamental right in civil law litigation.

[18] [reference]

[19] In the Lth decision, the German Federal Constitutional Court obliged a civil law jurisdiction to use the fundamental right in question as source in the ruling process. The ruling of the Federal Constitutional Court in Lth means that the civil law judge is obliged to mediate the relationship of A and B on the basis not only of the civil code, but also of the fundamental rights, if applicable. A magic transformation occurs, in that the fundamental rights do not apply as such, but in the process gets transformed into civil law! This is the effect of the construction according to which the obligation of the civil judge is to interpret certain provisions of the civil code (the so-called general clauses) in the light of the constitutional provisions (BVerfGE 7, 198, BVerfGE 7, 198, ]).

[20] The FCC needs to do so because of the concrete procedural situation in which it was seized. Cf. my expos in the Nanterre Seminar, 14 feb. 2005.

[21] Cf. Grootboom and others v Government of the Republic of South Africa and others, Grootboom, CCT38-00, 21 9 2000