The effects of fundamental rights in private disputes

Abstract

This Essay articulates two intertwined points about the effects of fundamental rights in private disputes. First, it presents a case against the doctrine of direct horizontal effect, although not on the familiar grounds that it places individual freedom in jeopardy. It argues instead that legislative mediation instantiates values of legal certainty, deliberative idleness, and political legitimacy cherished in a constitutional democracy. The second point is that the quarrel concerning the horizontal effect of fundamental rights is not outcome-neutral. The fact that such rights bind directly only law-making agencies has normative consequences both in terms of their influence on private litigation and in terms of the responsibilities of the state qua law-maker. These arguments are doubly conditional. On the one hand, they are based on three premises of constitutional theory discussed in the first section: protective entitlements, fundamental rights as principles, and a concentrated model of judicial review of legislation. On the other hand, the rejection of direct horizontal effect is not absolute: it holds only within the core case where the premises obtain, thereby allowing a number of noncore cases of direct effect.