In defense of the horizontal application of the due process clause

Abstract

The main objective of this paper is to answer the following research problem: is it possible to apply the constitutional clause of due process of law in a horizontal dimension, in the context of relationships between private subjects? The hypothesis is the understanding of due process as an adaptive guarantee of the rule of law, which must be responsibly extended to new contexts outside the individual-state relationship, based on a specific test. As a main result, the factual and theoretical premises that support the hypothesis inform that the promotion of constitutional liberties, empirically, depends not only on the State, but also on the conduct of other social agents. Therefore, the conclusion is that by failing to consider the relevance of the internal structure of society — and thus failing to distinguish asymmetrical forms of power exercise — the liberal doctrine of state action fails considerably. The theoretical grounds of the paper are provided by a comparative analysis, with emphasis on the precedents of foreign Constitutional Courts — such as the Supreme Court of the United States and the Constitutional Court of South Africa — and international courts. The method employed is the hypothetical-deductive approach.