Horizontal Rights: A Republican Vein in Liberal Constitutionalism

Abstract

While liberal constitutional theory typically understands constitutions as establishing vertical arrangements in which governments protect individual rights, some courts have introduced doctrines of horizontal effect, holding private bodies responsible for the rights of others. This article argues that we can understand such horizontal rights as a republican vein in the tradition of liberal constitutionalism. While the conventional liberal narrative emphasizes the rights of individuals, horizontal effect builds a catalogue of individual duties as well, corresponding to the commitments and aspirations of a given constitutional order. This article draws on classical and contemporary republican political theory, as well as cases from Germany, India, and South Africa, to demonstrate how the structure of and arguments for horizontal rights reflect proclivities and track commitments associated with republicanism. Although the fact of a republican streak in these rights need not make them antithetical to existing understandings of constitutionalism, it does admit the distinctive potential of horizontal rights to alter elements of conventional narratives about the nature, purpose, and limits of constitutionalism.