Home 1st Congress HORIZONTALITY REVOLUTION IN CONSTITUTIONAL JURISPRUDENCE: THE SPLENDOURS AND MISERIES OF POSTMODERN CONSTITUTIONALISM

HORIZONTALITY REVOLUTION IN CONSTITUTIONAL JURISPRUDENCE: THE SPLENDOURS AND MISERIES OF POSTMODERN CONSTITUTIONALISM

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Horizontality Revolution In Constitutional Jurisprudence: The Splendours And Miseries Of Postmodern Constitutionalism

Oleksandr Vodiannikov, LL.M., PhD.

We live in the era of postmodern constitutionalism. This truism, however trite it may be, bears a still unchallenged currency for ongoing constitutional 0debates on the scope of application of constitutional rights provisions, in particular, their reach into the private sphere[1]. This question of “horizontal” or “third-party” effect (“Drittwirkung”) is of considerable relevance not only for constitutional jurisprudence but also for the current development of modern law, for what is really at stake here is the collapsing of the traditional boundaries between constitutional law and private law.

If we look closer though the lenses of Foucauldian genealogy at the issue, we would encounter within this postmodern discourse a deeper layer, emanating from post-Enlightenment modernism, namely the overarching strife of modern state to make a society legible, “to arrange the population in ways that simplified the classic state functions of taxation, conscription, and prevention of rebellion”[2]. This search for legibility emerged as modernity’s central problem in statecraft[3]. The ideal of orderly organized, intelligible and rationalized society that the state tried effecting though various ways ranging from formation of permanent last names, standardization of weights and measures, implementation of cadastral surveys to modern codifications, written constitutions, uniformity in legal discourse and promotion of a single official language, culminated in totalitarian utopias of the XX century driven by “high-modernist ideology” of scientific and technological progress towards a utopian goal[4].

Modern bureaucratic state borne within the Enlightenment project and baptized in bloodsheds of great revolutions of the XVIII century faced the fundamental challenge of transforming parochial network-based society of decentralized power and authority with ineffably complex and “illegible” local social practices into a standard frame so that leaders and bureaucrats can record, monitor, and control. This legibility paradigm may be viewed as modern state reaction to Bonini’s paradox: “As a model of a complex system becomes more complete, it becomes less understandable. Alternatively, as a model grows more realistic, it also becomes just as difficult to understand as the real-world processes it represents”[5]. Legibility paradigm tries to solve the problem by squeezing the illegible social practices to make them fitting into a rationalized and simplified model.

The ultimate irony is that the modern state collapsed while being on an apparent apex of its development. Experiments in social engineering undertaken in Soviet Russia and Nazi Germany brought about the modern state’s extremes[6]. This collapse stretched for half a century from the horrors of Holocaust to the last ailing whimper of the Soviet system. This protracted collapse also buried etatism and legalism, and begot postmodern constitutionalism.

What is postmodern in current constitutionalism? There is a temptation to take on its face value what Jean-François Lyotard has termed “incredulity towards metanarratives”[7]. Indeed dethronement of various Enlightenment dogmas, be they conservative, liberal, communistic or nationalistic, brings into focus the inner self, human personality, naked dignity,  disenchants the enigma of state and authority as metanarratives[8]. Constitution as black letter law is dead now. Constitution as scripture has given way to constitution as discourse[9].

Metanarratives, collapsing “in clouds of narrative language”[10] and delocalizing legitimacy, are still present and competing, but neither omnipotent nor legitimizing. In postmodernity the “search for new legal theories and metanarratives to solve law’s problems has been exhausted”[11]. This is ever present in jurisprudential thinking but seldom explicitly articulated in judicial practices. Constitutional law as well as all other parts of legal system is in the stage of indeterminacy and uncertainty. Such metanarratives as Democracy and Rule of Law are set into perpetual disintegration and renewal, ambiguity and contradiction.

Constitution as an “authority map” gave way to postmodern constitution as a set of open-ended standards and general clauses marked by greater symbolic and rhetorical power. Why this happened and what driving forces lies behind the seemingly “overstretched” constitutional law today? Why the wall between the constitutional law and private sphere collapsing? Is this the new emanation of legibility paradigm or some new social phenomena pave the way for these developments?

Birth of verticality

The birth of constitution as fundamental law, as a set of norms that govern the public use of power became the apex of Enlightenment project. Its genealogy leads us to loi fundamentales of Ancien Régime and colonial charters of North America, but despite various ways of its evolution the core discursive idea lies in the fact that “both internally and externally, it creates legal conditions for the use of political power, and it possesses a certain primacy above other elements of the law and the political system”[12]. The era of great constitutions coincides with process of modern codifications. This, I assume, is not a coincidence. As prof. Thornhill observes, “…a sociological approach might observe constitutions as evolving through multi-levelled historical/functional processes, and it might identify the suggestion that categorical disjunctures occur in the formation of constitutions as revolving around a simplification of society’s functional structure”[13].

Constitution as scripture as well as modern legal codes emerges within general restructuring of the legal discourses around text that occurred within the legal Achsenzeit of modernity, i.e. last decades of XVIII and first half of XIX centuries. This process effectively completed the paradigm shift in law: eclectic, dispersed and decentralised regula gave way to the power of the Norm[14]:

The power of the Norm appears through the discipline. Is this the new law of modern society? Let us say rather that, since the eighteenth century, it has joined other powers – the Law, the Word (Parole) and the Text, Tradition – imposing new delimitations upon them. The Normal is established as a principle of coercion in teaching with the introduction of standardised education and the establishment of the ecoles normales (teachers’ training colleges); it is established in the effort to organise a national medical profession and a hospital system capable of operating general norms of health; it is established in the standardisation of industrial processes and products … Like surveillance and with it, normalisation becomes one of the great instruments of power at the end of the classical age.

Within this comparatively short period of time when the new bourgeois “confinement society”[15] was born, the norm superseded ancient open-ended concepts of regula (rule, règle, regel, regola, regla), brocards, adages, generalia, regulae iuris, thus fundamentally shifting the legal discourse.

The birth of modern state became possible with the emergence of individual sphere of actions, civil society and public discourse. As Christoph Graber and Gunther Teubner explain, “It is social differentiation that creates a variety of autonomous spheres of action, the autonomy of which is protected by complementary constitutional rights. The sphere of the self-realizing individual is only one among many spheres of autonomy in society which are guaranteed by constitutional rights as a social institution. Social differentiation and the emergence of constitutional rights are complementary historical processes. While in. stratified societies, political action is closely intertwined with religious, legal, economic, and social meaning and inherently limited by this social context, modem politics and the State in its autonomy lose their inherent limitations and tend to politicize the rest of society. But here, other spheres of communication have gained an equal status of autonomy: religion, education, economy, science, law, health sector, mass media, and art”[16].

This liberal idea of autonomous sphere for individual action and resulting values of liberty, autonomy, and privacy, on one hand, and the concept of popular sovereignty, on the other, animated the public-private division in the legal realm. Constitutions as an instrument of modern state have been therefore invested with the “most critical and distinctive function … to provide law for the lawmaker”[17], whereas “, limiting the scope of constitutional rights to the public sphere enhances the autonomy of citizens, preserving a heterogeneous private sphere free from the uniform and compulsory regime constructed by constitutional norms”[18]. Therefore the rigid public-private distinction in law, including constitutional law, was conceived as a safeguard for personal autonomy against state intrusion and integrity of the private sphere was elevated to the constitutional value.

Such considerations underlying, inter alia, the well known Lochner jurisprudence brought about the concept of vertical effect of the constitution in the sense that the individual’s constitutional rights are recognised and effective vis-à-vis the state only.

Full vertical effect doctrine is based upon assumption that the constitutional provisions and constitutional rights have nothing to do with private legal relationships. Constitutional rights apply only vis-à-vis the state (vertical relationship) as the constitution is meant to protect the individual from the state and is not apt or capable to deal with interpersonal relationships which has always been regulated by private law. As was succinctly stated by the Canadian Supreme Court in Dolphin Delivery case, “[Canadian Charter of Rights and Freedoms] was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation”[19].

Legal arguments in favour of purely vertical effect of the constitution are focused on three major points:

(1)        Essence of the Constitution. A Basic Law is designed to bind governments, not private actors. The nature of a constitutional text is to delimit the scope of governmental authority and to set up framework for the relationship between the citizen and the state and between the organs of government[20]. The purpose of constitutional bills of rights is to safeguard the basic autonomous spheres of an individual against any government interference.

(2)        Nature of the constitutional rights. The differing nature of the definition and scope of various fundamental rights ensures that not all rights can easily be applied horizontally to private individuals or bodies. In addition, private individuals and bodies cannot always be subject to the same requirements as public bodies[21]. As Israeli Supreme Court put it, “the state’s duties to uphold human rights are not the same content-wise as the individual’s duty to uphold human rights”[22].

(3)        Legal certainty. Full horizontal application also does run a risk of undermining legal certainty, due in particular to the open-ended nature of most constitutional rights[23].

Postmodern constitutional narrative: verticality collapsing?

The first blow on constitution’s verticality was struck by the modern state’s utopian extreme in the Soviet Union. The sinister experiment of social engineering begot the Soviet legal order, premised on the totalitarian idea of “fundamentals of Soviet socialist legality” («основы советской социалистической законности») which was meant to be a “method of enforcing working class’ dictatorship” and an “element of Soviet democracy”[24].

The core of this idea as was formed during the first formative years of the Soviet state was eloquently expressed in 1919 by the People’s Commissar of Justice of Ukrainian SSR A. Khmelnitskiy in his lecture “The Red Law and the Red Court”[25]:

“… Now the question is as follows: is there in the red law any principle resembling that of bourgeois law? I am proving definitely, that there is no one. But is there any principle that defines the red law? Such principle, such idea detached in any case from the very essence of the red law, exists. This principle is of purely utilitarian nature, the principle of proletariat’s class interests that directly and immediately relates to the interests of accelerated communism building. No other principle exists.

What kind of spirit blows over the whole Soviet jurisprudence? I say, this is the spirit of revolutionary utilitarianism. …

What is necessary is to eradicate the very spirit of private initiative, to kill the spirit of self-help and substitute it with the aid from above, with the principle of state assistance”.

The coercive and omni-intrusive ideology of the new social system conceived the law as a means of social engineering: “… law means nothing without the apparatus capable to coerce compliance with legal norms”[26]. The Soviet system recognised no autonomous sphere of individual, effectively dismantling any distinction between public and private. The radiating effect of this ideology was felt throughout the state apparatus and the society. To become a judge a person needed to be member of the Communist party and party membership entailed total subordination to “party and state discipline”: “[Communist party of the USSR] has one discipline, one law for all communists, irrespective of merits and posts occupied by them. Violation of party and state discipline is the greatest evil, damaging the party and therefore is incompatible with membership therein”[27]. Here the notorious Stalin’s idea of “democratic centralism” operated in full effect, making revolutionary (and later socialistic) legal self-consciousness an effective source of law, or super law capable of overriding private arrangements and compacts. On such premises there existed no distinction between what we can term as constitutional duties of government and constitutional duties of private individual in horizontal relations.

After the fall of Soviet regimes this ethos of omnipresent super law pervades the post-communist constitutional thinking and constitutional drafting.  As C. Sunstain observed, “the post-communist constitutions pervasively fail to make this distinction, and instead impose their duties on everyone, and create rights that are good against everyone. This step perpetuates, if in a small way, the failure of communist societies to create and protect a civil sphere”[28].

The second blow on constitution’s verticality was struck in the post-Nazi Germany on the dawn of contemporary legal post-modern. It seems that as a reaction to rigid legalism of the Nazi era and procedural bankruptcy of Weimar, the German Constitutional Court indoctrinated the Grundgesetz’ third party effect (drittwirkung) in Lüth case[29]. Worded within the then swaying legal discourse of constitution’s verticality the judgment made a fundamental shift: “There is no doubt that fundamental rights primarily intend to secure individual freedom against public action; they are defensive rights against the state … But it is also true that the Constitution … has developed an order of objective moral and legal principles and that the effectiveness of fundamental rights finds its distinct expression therein”[30]. This order of objective moral and legal principles produces a ‘radiant effect’ of the basic rights on private law and implements the values inherent in the precept of constitutional law.

The Lüth decision can be regarded as a founding moment of the ‘Postwar Paradigm’ of constitutional rights adjudication[31] with its language of judicial balancing and watering down the borderline between the constitution and private law sphere. Drittwirkung within this paradigm can be viewed, as suggested by Eric Engle, as one of the methods liberalism uses to channel political struggles, class conflict, hatred, and jealousy into constructive economic competition in order to forestall political extremes and social violence: “In keeping with the global post-war trend, the focal point of the post-war constitutional structure of Germany is the protection of human dignity (i.e. human rights). The German constitution seeks to prevent the rise of a strong, central, absolutist government. Drittwirkung thus protects fundamental rights, limits the strength of government, and embodies the ideas of a (liberal) economic constitution”[32].

The legal discourse in court rooms and among the academia within this Postwar paradigm has produced various responses to the challenge posted by declining modern state. The erosion of constitution’s verticality effectuated two major approaches to horizontal effect of the constitution:

(1)        “direct horizontal effect“, where constitutional rights are given full horizontal application. As judge Walsh from Irish Supreme Court encapsulated this approach in Meskell case, “…if a person has suffered damages by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right”[33].

(2)        “indirect horizontal effect“, where constitutional rights are applied indirectly to guide and shape the interpretation and application of existing private law. The second type can be further divided into two sub-types, which I would term as “court based effect” and “value based effect”.

The court based effect emanates from the vestiges of constitution’s verticality purporting to reconcile classic liberal conception of the constitution with the Postwar human rights paradigm. It proceeds from the premises that a judge in case is a state organ, vested with governmental authority, and therefore the constitutional right is directed towards him in the same way as any other branch of government. Therefore when exercising his or her function, the judge must act in a fashion that conforms to his constitutional duty to respect and uphold constitutional rights. This approach was indoctrinated in the New York Times Co. v. Sullivan[34]. The US Supreme Court in disposing grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny stated that the “The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised”[35].

The value based effect goes a bit further and assumes that each of the individual’s constitutional rights vis-à-vis the state has an objective value aspect which is projected itself onto all of the law’s branches. As Aaron Barak metaphorically put it in Kibbutz Hatzor case, this make up “a normative umbrella spread out above all legislation”[36]. These values are used for the interpretation of the private law, to complete lacunae in it or develop it. This approach was enunciated in the Lüth case where the Court emphasised that constitutional rights have an objective value for the legal system. This value influences the meaning of the private law’s provisions.

All these developments in jurisprudence and other legal discourses validate the question whether the constitution is transforming, whether the historically rooted verticality is collapsing, whether the legibility paradigm of modern state is taking new forms. 50 years of post-Lüth era suggest the answer in the affirmative. Horizontality in various dresses and under various names has transcended national constitutional law: State’s positive duties under ECHR case law, ECJ’s Laval quartet jurisprudence[37] make the process self-sustainable.

Conclusion: postmodern conditions and constitutionalism

In early 90th professor J.M. Balkin described MTV as a “paradigmatically postmodern phenomenon in its style of pastiche, fragmentation, and mediazation”.[38] Nowadays this characterisation is obsolete: mass digital connectivity has become the omnipowerful vehicle of postmodern with booming social networks, cell phones and other technologies making the dispersed humanity a global village. In the wake of postmodernity when thinkers reflected on mediazation and mass media, Jean Baudrillard warned that the mass media had erased the division between political simulation and reality, making the former itself the political reality[39]. Connectivity upset and reinforced this thesis: we live in multiplying realities, all of them being equally valid. Our global village society is less rational and more emotional, driven by “mad consensus”[40] formed within postmodern conditions of hyper-connectivity.

Referring to the questions posed in the beginning we should not overlook the larger picture of the constitutional democracy which is now in a highly unusual situation struggling with a crisis of both legitimacy and efficiency. So far no remedy can be offered to restore the balance between legitimacy and efficiency. Constitution’s verticality is destined either to tolerate majoritarian vices of democracy and restore efficiency or to give way to horizontal effect and safeguard legitimacy. Here we can see the signs of the new paradigmatic shift that can either remedy the results of “Democratic Fatigue Syndrome”[41] by giving full force to the idea of “a normative umbrella spread out above all legislation” or adapt the legibility paradigm to the new conditions of postmodernity, preserving and perpetuating democratic crisis. In both cases verticality collapses.

 [1] See among others Johan van der Walt, The Horizontal Effect Revolution and the Question of Sovereignty (2014); Dawn Oliver and Jörg Fedtke (eds), Human Rights and the Private Sphere. A Comparative Study (2007); Andrew Clapham, Human Rights in the Private Sphere (1993); Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights, 102 Michigan Law Review 387 (2003);  Murray Hunt, The “Horizontal Effect” of the Human Rights Act, 1998 Public Law 423; Ian Leigh, Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?, 48 International and Comparative Law Quarterly 57 (1999); Basil Markesinis, Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany, 115 Law Quarterly Review 47 (1999); Gavin Phillipson, The Human Rights Act, “Horizontal Effect” and the Common Law: a Bang or a Whimper?, 62 Modern Law Review 824 (1999); Richard Buxton, The Human Rights Act and Private Law, 116 Law Quarterly Review 48 (2000); Michael J. Horan, Contemporary Constitutionalism and Legal Relationships between Individuals, 25 International and Comparative Law Quarterly, 848 (1976); Christoph Graber and Gunther Teubner, Art and Money: Constitutional Rights in the Private Sphere?, 18 Oxford Journal of Legal Studies, 61 (1998); Jennifer Corrin, From Horizontal and Vertical to Lateral: Extending the Effect of Human Rights in Post Colonial Legal Systems of the South Pacific, 58 International and Comparative Law Quarterly, 31 (2009); Colm O’Cinneide, Taking Horizontal Effect Seriously: Private Law, Constitutional Rights and the European Convention on Human Rights, 4 Hibernian Law Journal, 77 (2003); Andrew Clapham, The Privatisation of Human Rights, 1995 European Human Rights Law Review 20.
[2] James Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (1998), р. 2.
[3] See ibid. “Legibility” in this sense, which simplified society and environment in order to apprehend and regulate them, was sought throughout millennia of our civilization. See Norman Yoffee, Myths of the Archaic State. Evolution of the Earliest Cities, States, and Civilizations (2004), p. 91 et seq.
This lust for legibility has been ever present since complex societies emerged. But as N. Yoffee rightly observes, “The ability to transform the social and natural orders, however, had to wait until the twentieth century, when modern states acquired the power to set pervasive, industrialized planning projects in motion for the benefit of civil societies that were powerless to resist them”. ibid. p.92.
[4] See ibid., p. 92.
[5] John Dutton and William Starbuck, Computer Simulation of Human Behaviour (1971), p.4; William Starbuck, Organizational Realities. Studies of Strategizing and Organizing (2006), p. 86.
[6] “…modernism itself was not progressive in all of its implications. Modernism brought us industrial methods of mass production and undreamed of technological progress. Modernism also brought us the Holocaust”. Jack M. Balkin, What Is a Postmodern Constitutionalism?, 90 Michigan Law Review, (1992), p. 1970.
[7] Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge, (1984), p. xxiv
[8] As prof. Balkin observes, “In philosophy, postmodernism is an attack on what are called “totalizing” theories or “master narratives” that seek to explain all or substantially all of society, history, knowledge, the nature of femininity, or virtually anything else within a comprehensive and articulable theory. From the perspective of postmodem philosophy, there is only a set of overlapping and occasionally conflicting “language games” that arise with respect to different spheres of social life, each incomplete and each constantly subject to alteration and development”. M. Balkin, Op. cit., p. 1971-1972.
[9] See Oleksandr Vodinnikov, Between Leviathan and Behemoth: Constitution-Discourse and Criminal Law in the Postmodern Conditions in Criminal Justice in Ukraine: Challenges and Prospects in the Light of Constitutional Reform (2015), 7 et seq (in Ukrainian).
[10] Lyotard, Op.cit.
[11] G. Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (1995), p. 9.
[12] See Chris Thornhill, A Sociology of Constitutions. Constitutions and State Legitimacy in Historical-Sociological Perspective (2011), p. 12.
[13] Ibid., p. 10.
[14] Michel Foucault, Discipline and Punish. The Birth of the Prison, (1991), p. 184.
[15] See: ibid., p. 297.
[16] Christoph Beat Graber and Gunther Teubner, Art and Money: Constitutional Rights in the Private Sphere? 18 Oxford Journal of Legal Studies, (1998), p. 64-65.
[17] Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights, 102 Michigan Law Review (2003), p. 394.
[18] Ibid., p. 394-395
[19] RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, (per McIntyre J.), para. 26. See also Peter W. Hogg Constitutional Law of Canada (2nd ed. 1985), p. 674: “The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons”.
[20] See Katherine Swinton, Application of the Canadian Charter of Rights and Freedoms, in The Canadian Charter of Rights and Freedoms (Tarnopolsky and Beaudoin, eds., 1982), p. 44‑45.
[21] As Katherine Swinton observes in relation to the Canadian Charter, “… in considering whether the Charter  should be directly applicable, the courts should bear in mind its drawbacks as a method of dealing with private action and the advantages of leaving the regulation of such conduct to human rights legislation or other legal controls. Legislation can be tailored to deal with the tension between privacy rights and equality or that between freedom of expression and prohibition of hate literature. It can expressly limit the applicability of equality guarantees to services or to areas open to the public, or specify the right to set bona fide job qualifications. The Charter is not so refined, and provides no guidelines for its application. These would have to be judicially determined”. Ibid., p. 47.
[22] CA 294/91 Jerusalem Community Burial Society v. Kestenbaum, IsrSC 46(2) 464. Aaron Barak eloquently encapsulates this idea: “The individual should not fill the shoes of the state, which possess the duty concerning constitutional rights. An individual does not have constitutional rights vis-à-vis another individual. The rights between the individuals are at the sub-constitutional level (statute or common law) and not at the constitutional level”. Aaron Barak, Constitutional Rights and Private Law, in Israeli Constitutional Law in the Making (Gideon Sapir, Daphne Barak-Erez, Aharon Barak, eds., 2013), p. 385
[23] This tendency, inaugurated with bill of rights movement, is currently omnipresent in postmodern law-making: as society becomes more complex, legal structures become more sophisticated, bringing about a general tendency in legislative and judicial practices to adopt vague and loose concepts such as the duty of care, fiduciary duties, and fairness. See e.g., Tie Fatt Hee, The Influence of Modernity, Modernisation and Postmodernism on Company Law Reform in Malaysia, 15(1) Bond Law Review, (2003), p. 295.
[24] See M. Strogovich, Socialist Legality in the Soviet Society in Questions of Soviet State and Law, 1917-1957 (1957), p. 269 (in Russian).
[25] A. Khmelnitskiy, The Red Law and the Red Court (1920) (in Russian).
[26] V. Lenin The State and Revolution. Marxism Teaching on the State and Tasks of Proletariat in Revolution in Lenin V.I. Complete Collection of Works (5th edn, 1974), Vol. 33, p. 99.
[27] Charter of the Communist Party of the Soviet Union, cited after M. Strogovich, Socialist Legality in the Soviet Society in Questions of Soviet State and Law, 1917-1957 (1957), p. 291 (in Russian).
[28] Cass Sunstain, Against Positive Rights in Western Rights? Post-Communist Application (A. Sajo ed, 1996), p. 228
[29] BVerfGE 7, 198. I. Senate (1 BvR 400/51)
[30] Ibid., p. 204
[31] Jacco Bomhoff, Lüth’s 50th Anniversary: Some Comparative Observations on the German Foundations of Judicial Balancing 9(2) German Law Journal (2008), p. 122.
[32] Eric Engle, Third Party Effect of Fundamental Rights (Drittwirkung), 5(2) Hanse Law Review (2009), p. 167
[33] Meskell v. Coras Iompair Eireann [1973] I.R. 121 (Walsh J.). Nevertheless such facial extravagance has been moderated by the subsequent case law of the Supreme Court: “But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus the Constitution guarantees the citizen’s right to his or her good name but the cause of action to defend his or her good name is the action of defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commenced. Likewise the victim of careless driving has the action of negligence by means of which to vindicate his rights” McDonnell v. Ireland [1998] 1 I.R. 134 (Barrington J.) at p. 148. See also Keating v. Crowley [2010] IESC 29 (Murray J.). Recent jurisprudence of the Irish Supreme Court tends to speak of “some element of horizontal applicability” rather than of direct horizontal effect: see e.g. Balmer v. Minister for Justice and Equality [2016] IESC 25 (O’Donnell J.).
[34] New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (Brennan J.).
[35] Ibid., p. 266. With certain reservations this approach can be traced back to Shelley v. Kraemer, 334 U.S. 1 (1948) where the US Supreme Court outlawed discriminatory remedies in individual disputes.
[36] CA 165/82 Kibbutz Hatzor v Assessing Officer, [1985] 39(2) IsrSC 70, 75 (Barak J.)
[37] See Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, OÜ Viking Line Eesti, judgment of 11 December 2007; Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundet, avd. 1, Svenska Elektrikerförbundet, judgment of 18 December 2007; Case C-346/06, Rechtsanwalt Dr. Dirk Rüffert v Land Niedersachsen, judgment of 3 April 2008; Case C-319/06, Commission v Luxembourg, judgment of 19 June 2008.
[38] Jack M. Balkin, What Is a Postmodern Constitutionalism?, 90 Michigan Law Review, (1992), p. 1970
[39] See Jean Baudrillard: Selected Writings (1988), p. 208-10.
[40] See Eric Schmidt and Jared Cohen, The New Digital Age. Reshaping the Future of People, Nations and Business (2013), p. 131.
[41] See David Van Reybrouck, Against Elections. The Case for Democracy, (2013).