Constitutional Rights and Private Law[*]
by
Aharon Barak
(1) The Problem Presented; (2) The Four Models; (a) The Direct Application Model; (b) The Non-Application Model; (c) The Application throughthe Judiciary Model; (d) The Indirect Application Model; (3) The Indirect Application Models in Action; (a) Constitutional Rights as Objective Values; (b) First Channel of Application: Interpreting Private Law; (I)The Objective Aspectsof Constitutional Rights and the Interpretation of Private Law; (II) The Interpretation of Valve Concepts; (i) Interpretation in Light of the Objective Aspectsof ConstitutionalRights; (ii) Public Policy; (iii) Good Faith; (III) Interpretation of Private Law and its Validity; (c) The Second Channel of Application: A Negative Arrangement and Lacunae; (I) The Silence of Private Law; (II) Negative Solution; (III) Lacunae; (d) Third Application Channel: Creating New Private Law; (I) New Legislation and Developing the Common Law; (II) New Legislation; (III) The Development of the Common Law;(IV) Proportionality of new legislation and the Development of the Common Law; (V) New Legislation and the Development of the Common Law – Discretionor Obligation; (i) Negative and Positive Rights; (ii) Fulfilling the Duty in Positive Rights; (4) The Indirect Application in Israel; (5) Conclusion
- The Problem Presented
All are in agreement that the individual’s constitutional rights[1] are directed towards the state. The history of human rights is that of the recognition of individual rights vis-à-vis the state. The texts of the different constitutions have turned this history into a reality. Often, explicit provisions are found in the constitution, according to which the state must respect the rights of individuals determined therein.[2] The question before us is; : are constitutional rights directed at the state (vertical relationship) alone or are these constitutional rights directed at individuals as well (horizontal relationship)? Is an employee’s (just like any other individual’s) constitutional right to freedom of expression, directed at the state, also an employee’s constitutional right to freedom of expression vis-à-vis the employer? This question is recognized in comparative constitutional law as a one regarding third party’s effects (Drittwirkung). The first party is the individual. The state is the second party. The third party is made up ofanother individual. The question is:are constitutional rights, granted by the constitution to the first party (the individual) directed towards the second party (the state) alone or also vis-à-vis the third party (another individual)? The literature on this subject is vast.[3]
This dilemma appears to be resolved when the constitution states (expressively or impliedly) a clear stand. In some constitutions there is an express reference to the horizontal effect. Thus, for example, in the Constitution of South Africa there is an explicit provision, that reads as follows:[4]
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
With this provision in mind, seemingly the question in South Africa is the scope of the provision and the circumstances where its conditions are met.[5] This conclusion is not free from doubts,[6] as the Constitutional Court’s rulings have determined that the application is indirect.[7] In a small number of constitutions there are provisions regarding the horizontal application of special constitutional rights.[8]
The United States Bill of Rights is drafted in a manner that precludes the horizontal effect on most rights. Thus, for example, the first amendment states:[9]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This provision is directed at Congress, and burdens it with obligations. This provision has only a vertical effect.
Under the assumption that a constitution is not expressly restricted tovertical effect, the question before us is if the constitutional rights apply onto horizontal relationships as well. The answer to this question is interpretive.[10] What are the options available to the interpreter?[11] In principle, one can think of four models: (1) Direct application model; (2) Non-Application model; (3) Application to the judiciary model; (4) Indirect application model. We will examine each of these four possibilities.
- The Four Models
- The Direct Application Model
The firstmodel available to the interpreter is to interpret the constitution’s provisions regarding human rights as being directed at both the stateand individuals.[12] According to this approach, constitutional rights directly apply onto the relationships between individuals. Thus, for example, according to this option, the right to dignity and liberty found in Basic Law: Human Dignity and Liberty also applies onto the relationships between individuals. According to this approach, the Basic Law recognizes the employer’s constitutional duty not to limit the employee’s human dignity and the employee’s constitutional right not to limit the employer’s human dignity. Similarly, the freedom of expression anchored in the constitution is not just the freedom of the individual vis-à-vis the state but also vis-à-vis every other individual. Two considerations support this option: First, in the modern reality, the danger to constitutional rights is not only from the state but also from other individuals. At times, these have powers no less than those of the state. Constitutional Rights should therefore apply on horizontal relationships as well.[13] Second, we are faced with an expansive privatization process.[14] State powers, whose use by the governmental authority must respect the constitutional rights of the individual vis-à-vis the state, are transferred over to the private sector. If within this sector the constitutional rights do not continue to apply, the result will be that the privatization will release the state of its constitutional duties without replacing it by imposing such duties on the private sector.
Despite the potency of these considerations, I believe that this model is not right.[15] The reasons brought for its defense don’t do not support it. Its methodology is wrong. Regarding the firstconsideration (the power of certain individuals as the state) – I believe that the individual’s protectionvis-à-vis anotherindividuals, no matter how powerful they may be, should be resolved in private law (stature or common law) itself. There is no justification in granting to a weaker individual a constitutional rights vis-à-vis a stronger individual, as this situation will also grant the stronger individual with a constitutional right vis-à-vis the weaker individual. The granting of constitutional status to aright is equal to the protection of said [u1]right from the state, a body that can legislate statutes or develop the common law and therefore limit the right. The granting of constitutional status to a right imposes limitations on the state to affect the right. This result is irrelevant to the protection of the weaker individual’s rights vis-à-vis the stronger individual. Asto the relationship between the weaker and stronger individual, sub-constitutional law is sufficient. The stronger individual has no legislative power and the limitation clause – which applies when the constitutional right is limited by a sub-constitutional norm – does not apply. Of course, to the extent that said sub-constitutional law does not sufficiently consider the weakness of one side, particularly due to their chronic weakness, the road is open to consider its constitutionality.[16] Indeed, disproportional protection by private law of the weak from the strong may make private law unconstitutional. As such, the weaker party’s constitutional right vis-à-vis the state is sufficient. There is no need to recognize this right as a constitutional right vis-à-vis the stronger side. The vertical effect is characterized by the constitutional right of the individual vis-à-vis the state. The state has no constitutional right vis-à-vis the individual. Acknowledging the horizontal effect will not strengthen the weaker party, for on the other side of the equation will stand a stronger individual with an identical constitutional right.
The second consideration (privatization which results in a release from constitutional obligations) may be a relevant when considering the constitutionality of the privatization.[17] Thus, for example, the privatization of prisons was declared in Israel unconstitutional due to its disproportional limitation of the prisoner right vis-à-vis the state.[18] When privatization is constitutional, the law that applies on the relationship between the individuals after the privatization should be the sub-constitutional law, which has been made suitable for privatization.[19]It is not fitting that the vertical relationship which applied vis-à-vis the state before the privatization continue to apply, vis-à-vis other individuals after privatization.
The direct application model is methodologically problematic. Its application is unsatisfactory. Methodologically when two principle-shaped constitutional rights conflict – whether it be the individual’s constitutional right vis-à-vis state or one individual’s constitutional right vis-à-vis another individual (according to the direct application model) – the conflict’s solution is not found at the constitutional level.[20] The scope of the constitutional right does not change. The conflict’s solution is at the sub-constitutional level, such as at the legislative or common law level. On this level we determine if the lawlimiting a constitutional right to realize another constitutional right is constitutional. Therefore, even if direct application is recognized, the conflict’s solution regarding the scope of the rights will not be at the constitutional level but rather at the sub-constitutional level, namely in providing the answer to the question of if the limiting law is constitutional. This level must of course fulfill the requirements of the limitation clause [u2](proportionality).
Therefore, the recognition of the direct application (horizontal)model is methodologically wrong. The logic at the foundation of the need to recognize the individual’s constitutional right vis-à-vis the state does not exist regarding the recognition of the constitutional right of one individual vis-à-vis another.[21]Comparative law supports my opinion on this matte[u3]r.
- The Non-Application Model
The secondmodel provides that constitutional rights apply only vis-à-visthe state (vertical relationship). A constitution is meant to protect the individual from the state and is not aimed in dealing with interpersonal relationships (horizontal), a relationship which has always been regulated by private law. According to this option, anything concerninginterpersonal relationships should be regulated in private law, without any influence or penetration of the constitution’s provisions, all of which are part of the public sphere. Of course, the boundary between the public law and private law is not so clear nor is it impenetrable. There are reciprocal ties between public and private law. Therefore, when developing legal doctrines regarding private law, the judge will consider the public law. This consideration reflects the need to observe the entire structure of society, law and the legal system. However, according to the second model, this consideration by the judge is not based on the application – direct or indirect – of the constitution’s provisions regarding human rights on interpersonal relationships.
Canadian law essentially takes[22] the second option.[23] The latter was determined in the Dolphin Delivery case.[24] In that case the labor union organized a strike against the employer. The Dolphin Delivery Company was not the employer, but rather supplied products to the employer. Despite this, the labor union decided to picket against Dolphin Delivery. The latter applied to the court to request an injunction, which prevented the labor union from committing a civil wrong of inducing breach of contract. In court the labor union claimed that it should not handed down an injunction as it would limit its right to freedom of expression which is protected in the Canadian Charter of Rights and Freedoms. The Supreme Court refuted this claim. It was ruled that the constitutional rights determined in the Canadian Charter of Rights and Freedoms are directed towards the state and not other individuals.
The non-applicationmodel is fitting to the extent that it rejects the direct application model. However, it creates too deep a rift between constitutional law and private law. There are closer ties between constitutional law and private law than those presented by the non-applicationmodel. At the core of these ties is the duties of private law – and the duty of the legislator and the judge who create and develop private law – to fulfill the constitutional values and principles.[25]
- The Application through the Judiciary Model
The thirdmodel is the application on the judiciary.[26] The starting point is that constitutional rights are directed towardsthe state alone. However, the judge is a state organ, and therefore the constitutional right is directed towards him. According to this model when the judge speaks, the state speaks; when the judge acts the state acts. The judge is the state and human rights need to be protected vis-à-vis him as well. The meaning of the latter, from the judge’s point of view, is two-fold: Firstly, he must develop the common law in a fashion that conforms to his duty not to disproportionally limit constitutional rights. Secondly, he must act within the confines of the specific dispute ina fashion which conforms to the parties’ constitutional rights vis-à-vis the state.
This model was developed in American constitutional law, wherein constitutional rights are directed towards the state. In the New York Times Co. v. Sullivan case[27] it is triggered regarding the development of the rules of defamation in tort law. In this case, the discussion concerned a claim of defamation filed by Sullivan (a public figure) against the New York Times. It was decided that the court must develop the common law of defamation according to the first amendment. In the Shelley v. Kraemer case[28] it was appliedto prevent discriminatory remedies in individual disputes. Here, the Shelley family (an African-American family) had purchased a home. Kraemer lived in that same neighborhood. He applied to the court in order to prevent the Shelley family from gaining possession of the home as the latter would have contradicted a restrictive covenant applicable on the house, according to which a "Negro" cannot purchase the home. The Supreme Court ruled that a judge cannot provide an injunction which would limit the principle of equality found in the Fourteenth Amendment.
The third model – so long as it is regarding an individual dispute – is wrong[u4].[29] It is not accepted in comparative law[u5], neither has it been developed in America. Despite this, the third model is correct when it concerns the common law. According to my point of view, the common law is subject to the general constitutional structure.[30] A common law precedent may lawfully limit a constitutional right. To do so, it must fulfill the requirements of the limitation clause – it must be proportional.[31] Therefore, I believe that Sullivan v. New York Times Co. v. Sullivan case[32]was rightly decided. This is not the case in Shelley v. Kraemer.[33] When the time comes for the judge to grant an injunction, he must act according to the rules of the common law which is the legal framework where the rules of the restrictive covenant and its enforcement were developed. If these rules allow for the non-granting of a discriminatory injunction – he must act according to these rules. If these rules determine that there is room to grant an injunction order, even if it is discriminatory – he has the duty to lead toa change in these rules (only if he is authorized to do so according to the judicial hierarchy (for example if the matter is brought before the supreme court) or according to the rules of judicial power (in the federal law system)). The rules of the common law cannot limit constitutional rights, unless they fulfill the requirements imposed by the legislation limiting the constitutional rights. So long as the common law is not changed – he must act according to the rules of the common law. If not, the constitution’s provisions, which see the right to equality as a right vis-à-vis the state alone and not vis-à-vis other individuals, becomes suddenly a right to equality vis-à-vis another individual. The judge is not empowered to do so. If a constitution’s provision regarding the right to equality applies vis-à-vis the state alone, and not on the relationship between individuals, there is no room for the conclusion that when a dispute between individuals comes to court, the judge must determine the dispute in an equal manner. This conclusion voids the constitutional provision according to which the right to equality applies on the relationships between the individual and the state only.
Indeed, Shelley v. Kraemer’s ruling was not sustained. Instead, the courts developed the doctrine of State Action.[34] The application of the constitutional rights included in the Bill of Rights vis-à-vis the judge are conditional that the individual, who according to the claim, limits the constitutional rights in his relationship with others, carries out functions which are traditionally the State’s. A significant amount of case law has been dedicated to this matter and has determined when the nexus between the State and the individual is sufficiently close, so close that it is possible to attribute the behavior to the State. This doctrine overrules, albeit not explicitly, the ruling in Shelley v. Kraemer. In light of the development of this doctrine, American law should no longer be seen as a system which adopts the model of the application through the judiciary. There are those who believe that the American approach adopts the indirect application.[35]