ABSTRACT
Treating the horizontal application of constitutional rights that has developed globally in the aftermath of the Second World War as not merely having a ‘radiating effect’, influencing private law from the outside, but as transplanting constitutional thought into private law, this chapter shows that horizontality converts a liberal constitutional order into a civic republican one. It presents an historicised understanding of horizontality by contrasting it with the relationship between private law and constitutional rights that characterised the model of constitutionalism emerging from the French and American revolutions. Analysing judicial decisions prominent in the development of horizontality in Germany and South Africa, it shows how horizontality extends private law’s concern with freedom beyond ensuring non-interference to encompass also the pursuit of non-domination. It concludes that the entwinement of horizontality with civic republicanism might help explain its geographical distribution.
du Bois, Francois, Constitutional Transplantation Into Private Law: From Liberal To Republican Legal Ordering (April 29, 2025).
Leave a Reply