Horizontal rights: an institutional approach

This Thesis develops and defends an approach to horizontal rights application, called the ‘institutional approach’. The institutional approach argues that constitutional rights ought to be applied between private parties, in situations where: (a) there exists an ‘institution’ (social, economic, or cultural), characterised by its pervasiveness and difficulty of exit (e.g., the labour market, or the family); (b) the institution creates and sustains a difference of power between the private parties; and (c) this difference in power enables one of the parties to violate the rights of the other. The Thesis is divided into two parts. Part One (Chapters One to Five) develops the theoretical and conceptual articulation of the institutional approach. Part Two (Chapters Six and Seven) applies it to two concrete legal issues, which exist across jurisdictions: the legal regulation of platform work, and of domestic relationships. The Concluding Chapter (Chapter Eight) explores the prospects of the institutional approach in contemporary constitutional adjudication. The problem that this Thesis seeks to address is that contemporary constitutionalism is characterised by a ‘default vertical’ approach to constitutional rights. ‘Default verticality’ means that while horizontal constitutional rights are not unknown, their existence and application is deemed to be an exception, that stands in need of special justification. Although in recent years, courts and scholars have extended the application of the horizontal rights framework to certain private relations, most of these ‘departures’ from verticality remain bound to its foundational assumptions. Furthermore, in Constitutions that contain horizontal rights, courts have refrained from articulating a principled approach towards their application. Finally, accounts that do depart from default verticality and its assumptions remain incomplete in certain important ways. The contribution of this thesis in addressing this problem, thus, is two-fold: first, it attempts to articulate a persuasive critique of the ‘default verticality’ that characterises contemporary constitutionalism, and of judicial and scholarly attempts to depart from it through various models of horizontality; and secondly, it aims to provide a fresh approach to horizontality that is both philosophically sound, and of practical utility in resolving contemporary legal issues.