Thesis: Summary

My thesis, entitled ‘The Shaping of Third-Party Effects: Presuppositions and Constraints’, is set in the context of constitutional theory and practice and deals with the impact of (constitutional) fundamental rights on private relations, known under the slogan ‘human rights and the private sphere’.

The thesis contains case-studies of different national jurisdictions through which this discussion on ‘horizontal application’ is inserted in the larger context of interpretation of effects of constitutional fundamental rights. It is argued that doctrines of horizontal effect of fundamental rights introduce a new layer of protection of individuals’ interests, adding to traditional protection through statutory and common law.

Doctrines of horizontality are defined as discourses through which the judge justifies the effect of fundamental rights on private relations. These are mostly not framed in terms of ‘constitutional duty of an individual’, but involve state obligations in one form or another. Fundamental rights can impact on private individuals (in their relations with other private individuals, or with the state) through judicial interpretation or development of civil/common law in the light of constitutional values, or through judicial censoring of government action, as well as non-action, on the basis of fundamental values-based judicial review.

In the following theoretical part it is argued that the vertical and horizontal interpretations of fundamental rights correspond to two different traditions within the liberal tradition of the modern state, one attached to a natural law view of individual freedom as sphere of autonomy, the other orientated towards fundamental values of society (equally rooted in a tradition of natural law, but translated into positive law via the constitution), used as an argumentative tool to enhance personal freedom, but also potentially limit private ‘autonomy’.

Georg Sommeregger