Noreen Burrows
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199299003
- eISBN:
- 9780191715037
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299003.003.0008
- Subject:
- Law, EU Law
This chapter examines the Opinions of a number of Advocates General in the cases relating to direct effect. Its purpose is to analyse the concept of direct effect from the standpoint of the Advocate ...
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This chapter examines the Opinions of a number of Advocates General in the cases relating to direct effect. Its purpose is to analyse the concept of direct effect from the standpoint of the Advocate General. It addresses questions such as: How did the Advocate General approach the case? What kind of thinking influenced him? Is it clear from the Opinions that the Advocates General understood the constitutional significance of the questions before the Court? Topics discussed include origins of the constitutional principle, direct effect of directives, and horizontal effect of directives.Less
This chapter examines the Opinions of a number of Advocates General in the cases relating to direct effect. Its purpose is to analyse the concept of direct effect from the standpoint of the Advocate General. It addresses questions such as: How did the Advocate General approach the case? What kind of thinking influenced him? Is it clear from the Opinions that the Advocates General understood the constitutional significance of the questions before the Court? Topics discussed include origins of the constitutional principle, direct effect of directives, and horizontal effect of directives.
Bruce Lyons
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566358
- eISBN:
- 9780191722790
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566358.003.0006
- Subject:
- Economics and Finance, Public and Welfare, International
This chapter provides an assessment of EC merger policy from three perspectives. First, it places the evolution of merger policy alongside the evolution of economic ideas in relation to competition ...
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This chapter provides an assessment of EC merger policy from three perspectives. First, it places the evolution of merger policy alongside the evolution of economic ideas in relation to competition and industrial organization. Second, it highlights recent developments in the practical economic appraisal of competition in four areas: unilateral (non-coordinated) effects, particularly the appropriate use of simulation techniques and the efficiency defence; coordinated effects (collective dominance), particularly the role of the Community Courts; non-horizontal effects, particularly the need for the new guidelines; and remedies, particularly weaknesses in current practice. Third, it introduces a simple bargaining approach to merger policy evaluation to draw conclusions about the trend in overall effectiveness of EC merger policy since 1990.Less
This chapter provides an assessment of EC merger policy from three perspectives. First, it places the evolution of merger policy alongside the evolution of economic ideas in relation to competition and industrial organization. Second, it highlights recent developments in the practical economic appraisal of competition in four areas: unilateral (non-coordinated) effects, particularly the appropriate use of simulation techniques and the efficiency defence; coordinated effects (collective dominance), particularly the role of the Community Courts; non-horizontal effects, particularly the need for the new guidelines; and remedies, particularly weaknesses in current practice. Third, it introduces a simple bargaining approach to merger policy evaluation to draw conclusions about the trend in overall effectiveness of EC merger policy since 1990.
Kai Möller
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199664603
- eISBN:
- 9780191745751
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199664603.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now ...
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Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterised by an extremely broad approach to the scope of rights (sometimes referred to as ‘rights inflation’), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy, that is, a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.Less
Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterised by an extremely broad approach to the scope of rights (sometimes referred to as ‘rights inflation’), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy, that is, a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.
Steffen Hindelang
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199572656
- eISBN:
- 9780191705540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572656.003.0006
- Subject:
- Law, EU Law
This chapter reviews the personal scope of application. As Article 56 (1) EC is directly effective in intra-Community and third-country contexts, beneficiaries can rely on it, in particular, in the ...
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This chapter reviews the personal scope of application. As Article 56 (1) EC is directly effective in intra-Community and third-country contexts, beneficiaries can rely on it, in particular, in the courts of the Member States. The group of addressees, however, also extends to the Community itself and, under certain conditions, to private persons.Less
This chapter reviews the personal scope of application. As Article 56 (1) EC is directly effective in intra-Community and third-country contexts, beneficiaries can rely on it, in particular, in the courts of the Member States. The group of addressees, however, also extends to the Community itself and, under certain conditions, to private persons.
Aurelia Colombi Ciacchi
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198712107
- eISBN:
- 9780191780257
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198712107.003.0004
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After ...
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This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After having analysed how the horizontal effect of national and EU fundamental rights works and which policy goals it serves, this chapter attempts to answer the question whether this use of fundamental rights is legitimate and desirable. This question is looked at from the background of a normative-individualistic understanding of fundamental rights. The analytical part of this chapter includes the proposition of a new doctrine: the double indirect horizontal effect of fundamental rights. This could help the Court of Justice develop its jurisprudence towards a better consideration of the non-economic human interests protected by EU fundamental rights. This chapter comes to the conclusion that, in applying fundamental rights horizontally, both the Court of Justice and the national courts seem to regularly give preference to certain societal policies over others. However, this does not mean that fundamental rights are instrumentalized. On the contrary, in the analysed cases, the pursuit of societal policies goes hand in hand with the strengthening of the basic interests of all individuals directly concerned. This confirms the normative-individualistic paradigm.Less
This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After having analysed how the horizontal effect of national and EU fundamental rights works and which policy goals it serves, this chapter attempts to answer the question whether this use of fundamental rights is legitimate and desirable. This question is looked at from the background of a normative-individualistic understanding of fundamental rights. The analytical part of this chapter includes the proposition of a new doctrine: the double indirect horizontal effect of fundamental rights. This could help the Court of Justice develop its jurisprudence towards a better consideration of the non-economic human interests protected by EU fundamental rights. This chapter comes to the conclusion that, in applying fundamental rights horizontally, both the Court of Justice and the national courts seem to regularly give preference to certain societal policies over others. However, this does not mean that fundamental rights are instrumentalized. On the contrary, in the analysed cases, the pursuit of societal policies goes hand in hand with the strengthening of the basic interests of all individuals directly concerned. This confirms the normative-individualistic paradigm.
Evelyn Ellis and Philippa Watson
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199698462
- eISBN:
- 9780191745904
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698462.003.0002
- Subject:
- Law, EU Law, Human Rights and Immigration
The chapter analyses in detail the principles underlying EU law, in particular those of its supremacy and direct effect. It concentrates on the characteristics of directives in particular, since ...
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The chapter analyses in detail the principles underlying EU law, in particular those of its supremacy and direct effect. It concentrates on the characteristics of directives in particular, since these have special significance in the field of anti-discrimination law. It examines the strategies used, and still being developed by the CJEU, to mitigate the lack of horizontal direct effect of directives. It also analyses the notion of procedural autonomy.Less
The chapter analyses in detail the principles underlying EU law, in particular those of its supremacy and direct effect. It concentrates on the characteristics of directives in particular, since these have special significance in the field of anti-discrimination law. It examines the strategies used, and still being developed by the CJEU, to mitigate the lack of horizontal direct effect of directives. It also analyses the notion of procedural autonomy.
Kai Möller
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199664603
- eISBN:
- 9780191745751
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199664603.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Chapter 2 argues that the value protected by constitutional rights must be positive freedom, or personal autonomy: in particular the doctrines of positive obligations and horizontal effect and the ...
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Chapter 2 argues that the value protected by constitutional rights must be positive freedom, or personal autonomy: in particular the doctrines of positive obligations and horizontal effect and the increasing acceptance of socio-economic rights indicate that the point of rights is to enable the people to live their lives autonomously, as opposed to disabling or limiting the government in certain ways. The chapter briefly discusses the values of equality and human dignity and concludes that while they may be useful and important for a theory of constitutional rights, they do not recommend themselves as the starting point of the reconstructive theory proposed in this book.Less
Chapter 2 argues that the value protected by constitutional rights must be positive freedom, or personal autonomy: in particular the doctrines of positive obligations and horizontal effect and the increasing acceptance of socio-economic rights indicate that the point of rights is to enable the people to live their lives autonomously, as opposed to disabling or limiting the government in certain ways. The chapter briefly discusses the values of equality and human dignity and concludes that while they may be useful and important for a theory of constitutional rights, they do not recommend themselves as the starting point of the reconstructive theory proposed in this book.
Gunther Teubner
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199644674
- eISBN:
- 9780191738814
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199644674.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; private intermediaries in the internet ...
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Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; private intermediaries in the internet threatened freedom of opinion, and recently, with particular impact, the global capital markets unleashed catastrophic risks — all of these pose constitutional problems in the strict sense. It is outside the limits of the nation-state in transnational politics and, at the same time, outside institutionalized politics, in the ‘private’ sectors of global society that these constitutional problems arise. The crisis in traditional constitutionalism is caused by transnationalization and privatization. The main thesis of the book is: The obstinate state-and-politics-centricity of traditional constitutionalism needs to be counteracted by a sociological approach which, so far, has remained unheard in the constitutional debate. Constitutional sociology projects the constitutional question not only onto the relationship between politics and law, but also onto the whole society. It is particularly in the so-called private sectors of world society that constitutional conflicts are emerging. Constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the state, particularly the globalized economy, science and technology, and the information media, when they endanger individual or institutional autonomy. The book identifies transnational regimes, particularly in the private area, as the new constitutional subjects in the global space which compete with the nation states. It analyses transnational societal constitutions in their functions, arenas, processes, and structures. It deals with the horizontal effects of constitutional rights in situations when transnational corporations violate human rights obligations. And it suggests solutions for collisions between different transnational regime constitutions.Less
Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; private intermediaries in the internet threatened freedom of opinion, and recently, with particular impact, the global capital markets unleashed catastrophic risks — all of these pose constitutional problems in the strict sense. It is outside the limits of the nation-state in transnational politics and, at the same time, outside institutionalized politics, in the ‘private’ sectors of global society that these constitutional problems arise. The crisis in traditional constitutionalism is caused by transnationalization and privatization. The main thesis of the book is: The obstinate state-and-politics-centricity of traditional constitutionalism needs to be counteracted by a sociological approach which, so far, has remained unheard in the constitutional debate. Constitutional sociology projects the constitutional question not only onto the relationship between politics and law, but also onto the whole society. It is particularly in the so-called private sectors of world society that constitutional conflicts are emerging. Constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the state, particularly the globalized economy, science and technology, and the information media, when they endanger individual or institutional autonomy. The book identifies transnational regimes, particularly in the private area, as the new constitutional subjects in the global space which compete with the nation states. It analyses transnational societal constitutions in their functions, arenas, processes, and structures. It deals with the horizontal effects of constitutional rights in situations when transnational corporations violate human rights obligations. And it suggests solutions for collisions between different transnational regime constitutions.
Jud Mathews
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190682910
- eISBN:
- 9780190682941
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190682910.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This chapter introduces readers to the horizontal effect of rights and why it matters. It explains how horizontal effect doctrines define some of the key commitments of the legal systems that produce ...
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This chapter introduces readers to the horizontal effect of rights and why it matters. It explains how horizontal effect doctrines define some of the key commitments of the legal systems that produce them. The chapter also introduces the three legal systems that are the subject of the book, Germany, the United States, and Canada, and lays out the basic structure of the case studies. For each, the focus is on three things in particular: a court’s initial moves to apply rights horizontally, the doctrinal structures the court devises to manage the horizontal effect of rights, and the broader consequences these choices have on governance, in interaction with the moves made by other actors and institutions. Applying rights horizontally has the potential to empower courts, but a mix of variables shape the consequences of any such move. The chapter previews the patterns that the case studies reveal.Less
This chapter introduces readers to the horizontal effect of rights and why it matters. It explains how horizontal effect doctrines define some of the key commitments of the legal systems that produce them. The chapter also introduces the three legal systems that are the subject of the book, Germany, the United States, and Canada, and lays out the basic structure of the case studies. For each, the focus is on three things in particular: a court’s initial moves to apply rights horizontally, the doctrinal structures the court devises to manage the horizontal effect of rights, and the broader consequences these choices have on governance, in interaction with the moves made by other actors and institutions. Applying rights horizontally has the potential to empower courts, but a mix of variables shape the consequences of any such move. The chapter previews the patterns that the case studies reveal.
Pedro Caro de Sousa
- Published in print:
- 2015
- Published Online:
- May 2015
- ISBN:
- 9780198727729
- eISBN:
- 9780191794070
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198727729.003.0007
- Subject:
- Law, EU Law
This chapter applies a contextual analytical framework to matters regarding the scope of the market freedoms other than the concept of restriction on economic free movement—namely, those concerning ...
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This chapter applies a contextual analytical framework to matters regarding the scope of the market freedoms other than the concept of restriction on economic free movement—namely, those concerning the requirement for a cross-border element, the economic aim of free movement, the necessary connection between the cross-border element and the exercise of the economic free movement right, and whether private behaviour can infringe upon free movement rules. The case law on these topics is reviewed, together with its normative foundations. It will then be demonstrated that adding institutional considerations to traditional, de-contextualized analyses that focus solely on the internal dimension leads to better descriptive models of each of these areas of the law. The chapter will close with a section concerning the normative implications of adopting a contextual approach.Less
This chapter applies a contextual analytical framework to matters regarding the scope of the market freedoms other than the concept of restriction on economic free movement—namely, those concerning the requirement for a cross-border element, the economic aim of free movement, the necessary connection between the cross-border element and the exercise of the economic free movement right, and whether private behaviour can infringe upon free movement rules. The case law on these topics is reviewed, together with its normative foundations. It will then be demonstrated that adding institutional considerations to traditional, de-contextualized analyses that focus solely on the internal dimension leads to better descriptive models of each of these areas of the law. The chapter will close with a section concerning the normative implications of adopting a contextual approach.
Mislav Mataija
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780198746652
- eISBN:
- 9780191808937
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198746652.003.0002
- Subject:
- Law, EU Law, Competition Law
Chapter II looks at the application of EU free movement rules to private regulation by the CJEU. It critically assesses the prevailing debate on these issues which focuses on an ill-defined notion of ...
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Chapter II looks at the application of EU free movement rules to private regulation by the CJEU. It critically assesses the prevailing debate on these issues which focuses on an ill-defined notion of private autonomy in order to either completely oppose or fully support the application of the free movement rules. It argues that all four freedoms are now, in principle, applicable to private regulation, converging around a legal test based on foreseeable effects on market access, rather than on formal criteria such as links to the State. As a corollary, the interpretation of the rules can adapt, and has in practice adapted to private actors through a more flexible justification analysis. This is described as a shift from ‘private autonomy’ arguments that seek to achieve exemptions from EU law to ‘regulatory autonomy’ arguments that engage with substantive policy choices while broadly recognizing the legitimacy of private regulators.Less
Chapter II looks at the application of EU free movement rules to private regulation by the CJEU. It critically assesses the prevailing debate on these issues which focuses on an ill-defined notion of private autonomy in order to either completely oppose or fully support the application of the free movement rules. It argues that all four freedoms are now, in principle, applicable to private regulation, converging around a legal test based on foreseeable effects on market access, rather than on formal criteria such as links to the State. As a corollary, the interpretation of the rules can adapt, and has in practice adapted to private actors through a more flexible justification analysis. This is described as a shift from ‘private autonomy’ arguments that seek to achieve exemptions from EU law to ‘regulatory autonomy’ arguments that engage with substantive policy choices while broadly recognizing the legitimacy of private regulators.
Hugh Collins
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198712107
- eISBN:
- 9780191780257
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198712107.003.0002
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Having assessed the growing impact of human rights law on private law in many jurisdictions, the first question is how to best understand the constitutional relationship between public and private ...
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Having assessed the growing impact of human rights law on private law in many jurisdictions, the first question is how to best understand the constitutional relationship between public and private law in the context of the horizontal impact of human rights on parties to private or commercial transactions. It is argued that whatever the constitutional framework adopted, human rights should only be permitted an indirect effect on the evolution of private law and should not be permitted to create directly effective rights. Since both parties to private law disputes may invoke rights, there is a need to balance rights, which, it is argued, should proceed under a double proportionality test. It is doubted whether the impact of human rights is likely to strengthen the interests of weaker parties in contractual disputes, but in general the application of rights to private law is welcomed because it is likely to promote a positive conception of freedom or autonomy.Less
Having assessed the growing impact of human rights law on private law in many jurisdictions, the first question is how to best understand the constitutional relationship between public and private law in the context of the horizontal impact of human rights on parties to private or commercial transactions. It is argued that whatever the constitutional framework adopted, human rights should only be permitted an indirect effect on the evolution of private law and should not be permitted to create directly effective rights. Since both parties to private law disputes may invoke rights, there is a need to balance rights, which, it is argued, should proceed under a double proportionality test. It is doubted whether the impact of human rights is likely to strengthen the interests of weaker parties in contractual disputes, but in general the application of rights to private law is welcomed because it is likely to promote a positive conception of freedom or autonomy.
Alec Stone Sweet and Jud Mathews
- Published in print:
- 2019
- Published Online:
- July 2019
- ISBN:
- 9780198841395
- eISBN:
- 9780191876912
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198841395.003.0005
- Subject:
- Political Science, Political Theory
Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes ...
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Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes invalidate the acts of those institutions to make rights effective. Chapter 5 considers how a court can build effectiveness while inducing inter-branch cooperation. A key is proportionality, which provides an infrastructure for the construction of dialogic jurisprudence. Constitutional courts delineate “zones of proportionality” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. The chapter considers how rights-based, constitutional dialogues play out in three contexts, with respect: to legislating, making and enforcement of administrative law, and in the adjudication of private law disputes. These dialogues not only serve to secure other institutions’ acquiescence to the court’s jurisprudence, but drive proportionality reasoning into their decision-making routines, and hence into the legal domains over which they preside.Less
Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes invalidate the acts of those institutions to make rights effective. Chapter 5 considers how a court can build effectiveness while inducing inter-branch cooperation. A key is proportionality, which provides an infrastructure for the construction of dialogic jurisprudence. Constitutional courts delineate “zones of proportionality” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. The chapter considers how rights-based, constitutional dialogues play out in three contexts, with respect: to legislating, making and enforcement of administrative law, and in the adjudication of private law disputes. These dialogues not only serve to secure other institutions’ acquiescence to the court’s jurisprudence, but drive proportionality reasoning into their decision-making routines, and hence into the legal domains over which they preside.
Jud Mathews
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190682910
- eISBN:
- 9780190682941
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190682910.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations ...
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Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court—not in isolation, but as a central feature of a broader account of that country’s constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.Less
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court—not in isolation, but as a central feature of a broader account of that country’s constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0011
- Subject:
- Law, Comparative Law, Legal History
The provisional conclusions reached through application of this book's method to the English and French contexts invite supplementary and corrective research of other contexts. Central to those ...
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The provisional conclusions reached through application of this book's method to the English and French contexts invite supplementary and corrective research of other contexts. Central to those conclusions is a systemic relationship between a working distinction between public and private law and features of its legal and political context, expressed in the book's model or ideal type and elaborated upon in its chapters. This chapter explains implications of that relationship for English law — the hazards of the distinction's ill-considered transplantation and the need to retreat from the distinction and/or comprehensive reforms to accommodate it. It describes a partial retreat and considers comprehensive reforms, ranging from practical proposals by Lord Woolf and theoretical elaboration upon concepts of the state, monopoly, and power. It suggests that greater European legal and political integration or convergence through the use, inter alia, of proportionality or the ECJ's distinction between the vertical and horizontal effect of directives, facilitate the distinction's accommodation, but that its influence is uneven and thus insufficient to bring it about. A satisfactory separate system of English public law, it concludes, is still remote.Less
The provisional conclusions reached through application of this book's method to the English and French contexts invite supplementary and corrective research of other contexts. Central to those conclusions is a systemic relationship between a working distinction between public and private law and features of its legal and political context, expressed in the book's model or ideal type and elaborated upon in its chapters. This chapter explains implications of that relationship for English law — the hazards of the distinction's ill-considered transplantation and the need to retreat from the distinction and/or comprehensive reforms to accommodate it. It describes a partial retreat and considers comprehensive reforms, ranging from practical proposals by Lord Woolf and theoretical elaboration upon concepts of the state, monopoly, and power. It suggests that greater European legal and political integration or convergence through the use, inter alia, of proportionality or the ECJ's distinction between the vertical and horizontal effect of directives, facilitate the distinction's accommodation, but that its influence is uneven and thus insufficient to bring it about. A satisfactory separate system of English public law, it concludes, is still remote.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.003.0010
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal ...
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This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.Less
This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.
Ansgar Ohly
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199665105
- eISBN:
- 9780191758881
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199665105.003.0008
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter analyses the impact of European fundamental rights on intellectual property. First it outlines the European human rights systems. Secondly the author analyses to what extent ...
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This chapter analyses the impact of European fundamental rights on intellectual property. First it outlines the European human rights systems. Secondly the author analyses to what extent constitutional rights restrict the freedom of national IP legislation. On the one hand, the legislature has considerable discretion in defining the content and limits of property, on the other hand the principle of proportionality is an important device for balancing competing interests. Constitutional law may also help to detect inconsistencies in legislation. Thirdly, the chapter looks into the effect of constitutional law on the application of intellectual property law. Drawing on case examples, the author shows that constitutional rights provide guidelines when applying broad concepts such as fairness, that they may inform the interpretation of exceptions and that they can even provide a basis for the development of new causes of action, as in the case of the protection of privacy.Less
This chapter analyses the impact of European fundamental rights on intellectual property. First it outlines the European human rights systems. Secondly the author analyses to what extent constitutional rights restrict the freedom of national IP legislation. On the one hand, the legislature has considerable discretion in defining the content and limits of property, on the other hand the principle of proportionality is an important device for balancing competing interests. Constitutional law may also help to detect inconsistencies in legislation. Thirdly, the chapter looks into the effect of constitutional law on the application of intellectual property law. Drawing on case examples, the author shows that constitutional rights provide guidelines when applying broad concepts such as fairness, that they may inform the interpretation of exceptions and that they can even provide a basis for the development of new causes of action, as in the case of the protection of privacy.
Elise Muir
- Published in print:
- 2018
- Published Online:
- December 2018
- ISBN:
- 9780198814665
- eISBN:
- 9780191852350
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198814665.003.0003
- Subject:
- Law, EU Law
Each prong of EU equality law identifies specific grounds for differential treatment as well as specific fields in which differences of treatment are suspect. The precise applicable legal tools ...
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Each prong of EU equality law identifies specific grounds for differential treatment as well as specific fields in which differences of treatment are suspect. The precise applicable legal tools may—and often do—differ from one ground to the other and from one field to the other. Upstream, different legal bases, institutions, and procedures define the contours of the corresponding branches of EU equality law. Chapter 3 identifies the main components of this complex legal framework before analysing the competing role of the drafters of the Treaty, the EU’s judiciary, and political institutions in shaping EU equality law. The parameters of the doctrinal debate examined in the previous chapter are then used to revisit cases such as Barber, Grant, or Alimanovic as well as questions of judicial review (e.g. Test-Achats) and horizontal direct effect (Kücükdeveci) of the rules on equal treatment. It is submitted that three elements determine the pre-conditions for a healthy balance between the constitutional value of the relevant right, and the political dimension of decision-making on fundamental rights: the constitutional norm ought to explicitly call for political guidance, political institutions are invited to assert the policy implications of decision-making in the field, and the EU judiciary may have to refrain from palliating limits or imperfections resulting from the policy-making process.Less
Each prong of EU equality law identifies specific grounds for differential treatment as well as specific fields in which differences of treatment are suspect. The precise applicable legal tools may—and often do—differ from one ground to the other and from one field to the other. Upstream, different legal bases, institutions, and procedures define the contours of the corresponding branches of EU equality law. Chapter 3 identifies the main components of this complex legal framework before analysing the competing role of the drafters of the Treaty, the EU’s judiciary, and political institutions in shaping EU equality law. The parameters of the doctrinal debate examined in the previous chapter are then used to revisit cases such as Barber, Grant, or Alimanovic as well as questions of judicial review (e.g. Test-Achats) and horizontal direct effect (Kücükdeveci) of the rules on equal treatment. It is submitted that three elements determine the pre-conditions for a healthy balance between the constitutional value of the relevant right, and the political dimension of decision-making on fundamental rights: the constitutional norm ought to explicitly call for political guidance, political institutions are invited to assert the policy implications of decision-making in the field, and the EU judiciary may have to refrain from palliating limits or imperfections resulting from the policy-making process.
Cormac Mac Amhlaigh
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199669318
- eISBN:
- 9780191749353
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199669318.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the ...
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This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.Less
This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.
Jacob T. Levy
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780198717140
- eISBN:
- 9780191785900
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198717140.003.0012
- Subject:
- Political Science, Political Theory
This chapter discusses arguments for holding associations to the normative standards to which liberals hold states. Complex associations, such as universities, contain internal associational spheres; ...
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This chapter discusses arguments for holding associations to the normative standards to which liberals hold states. Complex associations, such as universities, contain internal associational spheres; why should those associations not have the same freedom against the umbrella group that other associations have against the state? The chapter argues that complex associations ought to retain internal authority to shape their subordinate associations, and that the apparent resemblance between universities and the liberal constitutional state is a mistake. The similarity between universities’ internal norms such as academic freedom, and public constitutional rules such as freedom of speech, is misleading; universities are purposive institutions that hold to academic freedom for internal reasons. The chapter concludes with discussion of related concepts from constitutional law: the American state-action doctrine, and the doctrine of horizontal effect used in some other jurisdictions.Less
This chapter discusses arguments for holding associations to the normative standards to which liberals hold states. Complex associations, such as universities, contain internal associational spheres; why should those associations not have the same freedom against the umbrella group that other associations have against the state? The chapter argues that complex associations ought to retain internal authority to shape their subordinate associations, and that the apparent resemblance between universities and the liberal constitutional state is a mistake. The similarity between universities’ internal norms such as academic freedom, and public constitutional rules such as freedom of speech, is misleading; universities are purposive institutions that hold to academic freedom for internal reasons. The chapter concludes with discussion of related concepts from constitutional law: the American state-action doctrine, and the doctrine of horizontal effect used in some other jurisdictions.
