Constitutional Rights and Private Law*
by
Aharon Barak
(1) The Problem Presented; (2) The Four Models; (a) The Direct Application Model; (b) The
Non- Application Model; (c) The Application through the Judiciary Model; (d) The Indirect
Application Model; (3) The Indirect Application Models in Action; (a) Constitutional Rights as
Objective Values; (b) First Channel of Application: Interpreting Private Law; (I) The Objective
Aspects of Constitutional Rights and the Interpretation of Private Law; (II) The Interpretation of
Valve Concepts; (i) Interpretation in Light of the Objective Aspects of Constitutional Rights; (ii)
Public Policy; (iii) Good Faith; (III) Interpretation of Private Law and its Validity; (c) The
Second Channel of Application: A Negative Arrangement and Lacunae; (I) The Silence of
Private Law; (II) Negative Solution; (III) Lacunae; (d) Third Application Channel: Creating New
Private Law; (I) New Legislation and Developing the Common Law; (II) New Legislation; (III)
The Development of the Common Law; (IV) Proportionality of new legislation and the
Development of the Common Law; (V) New Legislation and the Development of the Common
Law – Discretion or Obligation; (i) Negative and Positive Rights; (ii) Fulfilling the Duty in
Positive Rights; (4) The Indirect Application in Israel; (5) Conclusion
*
This paper is based on my past writing on this subject as well as an additional development of this train of
thought. For previous publications see A Barak, 'Constitutional Human Rights and Private Law' in A M
Rabello & P Sarcevic (eds), Freedom of Contract and Constitutional Law 105 (HUJI, 1998); A Barak,
'Constitutional Human Rights and Private Law' in D Freedman & D Barak-Erez (eds), Human Rights in
Private Law 13 (Hart, 2001); A Barak, 'Constitutional Human Rights and Private Law' (1996) 3 Rev. Const.
Stud. 218.
1
1. The Problem Presented
All are in agreement that the individual’s constitutional rights1 are directed
towards the state. The history of human rights is that of the recognition of individual
rights vis-à-vis the state. The texts of the different constitutions have turned this history
into a reality. Often, explicit provisions are found in the constitution, according to which
the state must respect the rights of individuals determined therein.2 The question before
us is: are constitutional rights directed at the state (vertical relationship) alone or are these
constitutional rights directed at individuals as well (horizontal relationship)?
Is an
employee’s (just like any other individual’s) constitutional right to freedom of
expression, directed at the state, also an employee’s constitutional right to freedom of
expression vis-à-vis the employer?
This question is recognized in comparative
constitutional law as a one regarding third party’s effects (Drittwirkung). The first party
is the individual. The state is the second party. The third party is made up of another
individual. The question is: are constitutional rights, granted by the constitution to the
first party (the individual) directed towards the second party (the state) alone or also visà-vis the third party (another individual)? The literature on this subject is vast.3
1
The term constitutional rights is used in the essay to describe rights expressly of impliedly guaranteed by
the constitution.
2
See Section 11 to Israeli Basic Law: Human Dignity and Liberty 1391 LSI 150 (1992) (Isr.), available in
English at: http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm; Section 5 to Israeli Basic Law:
Freedom
of
Occupation
1454 LSI 90
(1994)
available
in
English
at:
http://www.knesset.gov.il/laws/special/eng/basic4_eng.htm; see also Section 1(3) of the Basic Law for the
Federal Republic of Germany; Section 8(1) of the Constitution of the Republic of South Africa no. 108 of
1996.
3
In the last ten years there have been many articles published on this subject. The important books
published during that period are - A M Rabello & P Sercevic (eds.), Freedom of Contracts and
Constitutional Law (HUJI, 1998); R English & P Havers (eds.), An Introduction to Human Rights and the
Common Law (Hart, 2000); D Friedmann & D Barak-Erez (eds.), Human Rights in Private Law (Hart,
2001); A Sajó & R Uitz (eds.), The Constitution in Private Relations: Expanding Constitutionalism (Eleven
International Publishing, 2005); T Barkhuysen & S D Lindenbergh (eds.), Constitutionalisation of Private
Law (Leiden, Martinus Neihoff Publishers, 2006); K S Ziegler (ed.), Human Rights and Private Law:
Privacy as Autonomy (Hart, 2006); D Oliver and J. Fedtke (eds.), Human Rights and The Private Sphere: A
2
This dilemma appears to be resolved when the constitution states (expressively or
impliedly) a clear stand. In some constitutions there is an express reference to the
horizontal effect. Thus, for example, in the Constitution of South Africa there is an
explicit provision, that reads as follows:4
A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty
imposed by the right.
With this provision in mind, seemingly the question in South Africa is the scope of the
provision and the circumstances where its conditions are met.5 This conclusion is not
free from doubts,6 as the Constitutional Court’s rulings have determined that the
application is indirect.7 In a small number of constitutions there are provisions regarding
the horizontal application of special constitutional rights.8
The United States Bill of Rights is drafted in a manner that precludes the
horizontal effect on most rights. Thus, for example, the first amendment states:9
Comparative Study (Routledge-Cavendish, 2007); C Mak, Fundamental Rights in European Contract Law:
A Comparison of the Impact of Fundamental Rights on Contractual Relationships in Germany, the
Netherlands, Italy and England (Alphen an den Rijn, Kluwer Law International, 2008); D Hoffman (ed.),
The Impact of the UK Human Rights Act on Private Law (ed., 2011).
4 Section 8(2) of the Constitution of the Republic of South Africa (1996).
5
See S Woolman, 'Application' in S Woolman & M Bishop (eds.), Constitutional Law of South Africa,
Chapter 31 ( 2nd. Ed., Pretoria, Juta Law, 2005).
6
See H H. Cheadle, 'Third Party Effect in the South African Constitution' in The Constitution in private
relations, supra note 3, at 55.
7
Du Plessis v. De Klerk 1996 (3) SA 850 (CC); Bernstein v. Bester NO 1996 (4) BCLR 449 (CC);
Carmichele v. Minister of Safety and Security 2001 (4) SA 938 (CC); Khumalo v. Holomisa 2002 (5) SA
401 (CC); Rail Commuters Action Group v. Transnet Ltd. 2005 (2) SA 539 (CC).
8
See U.S. Const., Amend. XIII, which bans slavery. This ban applies on interpersonal relationships. See
also Article 9(d)THERE IS NO PART (d) IN ARTICLE 9 (IT HAS SECTIONS 9(1), 9(2), 9(3)) to the
German Basic Law which bans agreements between individuals which limit the freedom of association.
9
U.S. Const., Amend. I.
3
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
This provision is directed at Congress, and burdens it with obligations. This provision has
only a vertical effect.
Under the assumption that a constitution is not expressly restricted to vertical
effect, the question before us is if the constitutional rights apply onto horizontal
relationships as well. The answer to this question is interpretive.10 What are the options
available to the interpreter?11 In principle, one can think of four models: (1) Direct
application model; (2) Non-Application model; (3) Application to the judiciary model;
(4) Indirect application model. We will examine each of these four possibilities.
2. The Four Models
a. The Direct Application Model
The first model available to the interpreter is to interpret the constitution’s
provisions regarding human rights as being directed at both the state and individuals.12
According to this approach, constitutional rights directly apply onto the relationships
between individuals. Thus, for example, according to this option, the right to dignity and
liberty found in Basic Law: Human Dignity and Liberty also applies onto the
10
See A Barak, Purposive Interpretation in Law 370 (Prunceton University Press, 2005)
See Peter W. Hogg, Constitutional Law of Canada 102 (Vol 2, 5 th ed., 2007).
12
For this model see Barak, Purposive Interpretation, Supra note *. In German literature this approach is
referred to as "unmittelbare Drittwirkung". For an analysis of this approach, see R Alexy, A Theory of
Constitutional Rights 351 (translated by Julian Rivers, Oxford University Press, 2002); M Kumm & V
Ferreres Comella, 'What Is So Special About Constitutional Rights in Private Litigation? A Comparative
Analysis of the Function of State Action Requirement and Indirect Horizontal Effect', in The Constitution
in Private Relations, supra note 3, at 241.
11
4
relationships between individuals. According to this approach, the Basic Law recognizes
the employer’s constitutional duty not to limit the employee’s human dignity and the
employee’s constitutional right not to limit the employer’s human dignity. Similarly, the
freedom of expression anchored in the constitution is not just the freedom of the
individual vis-à-vis the state but also vis-à-vis every other individual.
considerations support this option:
Two
First, in the modern reality, the danger to
constitutional rights is not only from the state but also from other individuals. At times,
these have powers no less than those of the state. Constitutional Rights should therefore
apply on horizontal relationships as well.13 Second, we are faced with an expansive
privatization process.14 State powers, whose use by the governmental authority must
respect the constitutional rights of the individual vis-à-vis the state, are transferred over to
the private sector. If within this sector the constitutional rights do not continue to apply,
the result will be that the privatization will release the state of its constitutional duties
without replacing it by imposing such duties on the private sector.
Despite the potency of these considerations, I believe that this model is not
right.15 The reasons brought for its defense do not support it. Its methodology is wrong.
Regarding the first consideration (the power of certain individuals as the state) – I believe
that the individual’s protection vis-à-vis another individuals, no matter how powerful
they may be, should be resolved in private law (stature or common law) itself. There is
13
See Barak, Purposive Interpretation, Supra note *, at 656.
See Y Zamir, Administrative Authority 39 (2nd ed., vol. I, Nevo, 2010) (Hebrew); D Barak-Erez,
Administrative Law 59 (vol. I, Tel Aviv, Israel Bar Association, 2010) (Hebrew); Y Dotan & B Medina,
'Legal Aspects of the Privatization of the Supply of Goods and Services' (2001) 37 Mishpatim 287
(Hebrew).
15
It is possible that it may be justified in special cases, when the legal system wishes to put up a red flag
regarding a certain kind of inappropriate activity. Therefore (I?) justify the Indian Constitution which
grasps as a duty not to discriminate against an obligation imposed not only vis-à-vis the state but also in
interpersonal relationships: see Article 15 of the Constitution of India. See also afformentioned U.S.
Const., Amend. XIII, which bans slavery. This ban applies on interpersonal relationships.
14
5
no justification in granting to a weaker individual a constitutional rights vis-à-vis a
stronger individual, as this situation will also grant the stronger individual with a
constitutional right vis-à-vis the weaker individual. The granting of constitutional status
to a right is equal to the protection of said right from the state, a body that can legislate
statutes or develop the common law and therefore limit the right. The granting of
constitutional status to a right imposes limitations on the state to affect the right. This
result is irrelevant to the protection of the weaker individual’s rights vis-à-vis the stronger
individual. As to the relationship between the weaker and stronger individual, subconstitutional law is sufficient. The stronger individual has no legislative power and the
limitation clause – which applies when the constitutional right is limited by a subconstitutional norm – does not apply. Of course, to the extent that said sub-constitutional
law does not sufficiently consider the weakness of one side, particularly due to their
chronic weakness, the road is open to consider its constitutionality.16 Indeed,
disproportional protection by private law of the weak from the strong may make private
law unconstitutional. As such, the weaker party’s constitutional right vis-à-vis the state is
sufficient. There is no need to recognize this right as a constitutional right vis-à-vis the
stronger side. The vertical effect is characterized by the constitutional right of the
individual vis-à-vis the state. The state has no constitutional right vis-à-vis the individual.
Acknowledging the horizontal effect will not strengthen the weaker party, for on the
other side of the equation will stand a stronger individual with an identical constitutional
right.
16
See F Raday, '"Privatization of Human Rights" and the Misuse of Force' (1994) 23 Mishpatim 21 PAGE#
(Hebrew).
6
The second consideration (privatization which results in a release from
constitutional obligations) may be a relevant when considering the constitutionality of the
privatization.17 Thus, for example, the privatization of prisons was declared in Israel
unconstitutional due to its disproportional limitation of the prisoner right vis-à-vis the
state.18 When privatization is constitutional, the law that applies on the relationship
between the individuals after the privatization should be the sub-constitutional law, which
has been made suitable for privatization.19 It is not fitting that the vertical relationship
which applied vis-à-vis the state before the privatization continue to apply, vis-à-vis other
individuals after privatization.
The direct application model is methodologically problematic. Its application is
unsatisfactory. Methodologically when two principle-shaped constitutional rights conflict
– whether it be the individual’s constitutional right vis-à-vis state or one individual’s
constitutional right vis-à-vis another individual (according to the direct application
model) – the conflict’s solution is not found at the constitutional level.20 The scope of the
constitutional right does not change. The conflict’s solution is at the sub-constitutional
level, such as at the legislative or common law level. On this level we determine if the
law limiting a constitutional right to realize another constitutional right is constitutional.
Therefore, even if direct application is recognized, the conflict’s solution regarding the
17
Relevant to this matter is the approach that the Parliament cannot release itself from its duty to determine
primary arrangements (the non-delegable duty): HCJ 3267/97 Rubinstein v. Minister of Defense [1998]
IsrSC 52(5) 481 PAGE#; HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v.
Prime Minister [2006] (1) IsrLR 105 PAGE#. Gideon Sapir, Primary Arrangements, 32 Tel Aviv U.L.Rev.
5 PAGE# (2010) (Hebrew).
18
See HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. The Minister of
Finance (not yet published, given on 19.11.2009).
19
See A Harel, Private Bodies in Administrative Law PAGE# (Tel Aviv, Israel Bar Association, 2008)
(Hebrew); D Barak-Erez, 'Public Corporations' (1995) 19 Tel Aviv U. L. Rev. 273 PAGE# (Hebrew).
20
See A Barak, Proportionality: Constitutional Rights and Their Limitations 83 (Cambridge University
Press, 2012).
7
scope of the rights will not be at the constitutional level but rather at the subconstitutional level, namely in providing the answer to the question of if the limiting law
is constitutional. This level must of course fulfill the requirements of the limitation
clause (proportionality).
Therefore, the recognition of the direct application (horizontal) model is
methodologically wrong. The logic at the foundation of the need to recognize the
individual’s constitutional right vis-à-vis the state does not exist regarding the recognition
of the constitutional right of one individual vis-à-vis another.21 Comparative law supports
my opinion on this matter.
b. The Non-Application Model
The second model provides that constitutional rights apply only vis-à-vis the state
(vertical relationship). A constitution is meant to protect the individual from the state and
is not aimed in dealing with interpersonal relationships (horizontal), a relationship which
has always been regulated by private law. According to this option, anything concerning
interpersonal relationships should be regulated in private law, without any influence or
penetration of the constitution’s provisions, all of which are part of the public sphere. Of
course, the boundary between the public law and private law is not so clear nor is it
impenetrable. There are reciprocal ties between public and private law. Therefore, when
developing legal doctrines regarding private law, the judge will consider the public law.
This consideration reflects the need to observe the entire structure of society, law and the
legal system. However, according to the second model, this consideration by the judge is
21
Alexy, Supra note *, at 362: "[D]irect horizontal effect cannot mean that rights of the citizens against the
state are also rights of the citizen against other citizens… direct horizontal effect cannot be achieved by
exchanging the addressee of the right of a citizen against the state".
8
not based on the application – direct or indirect – of the constitution’s provisions
regarding human rights on interpersonal relationships.
Canadian law essentially takes22 the second option.23 The latter was determined
in the Dolphin Delivery case.24 In that case the labor union organized a strike against the
employer. The Dolphin Delivery Company was not the employer, but rather supplied
products to the employer. Despite this, the labor union decided to picket against Dolphin
Delivery. The latter applied to the court to request an injunction, which prevented the
labor union from committing a civil wrong of inducing breach of contract. In court the
labor union claimed that it should not handed down an injunction as it would limit its
right to freedom of expression which is protected in the Canadian Charter of Rights and
Freedoms. The Supreme Court refuted this claim. It was ruled that the constitutional
rights determined in the Canadian Charter of Rights and Freedoms are directed towards
the state and not other individuals.
The non-application model is fitting to the extent that it rejects the direct
application model. However, it creates too deep a rift between constitutional law and
private law. There are closer ties between constitutional law and private law than those
presented by the non-application model. At the core of these ties is the duties of private
law – and the duty of the legislator and the judge who create and develop private law – to
fulfill the constitutional values and principles.25
22
It is also possible to see weakened indirect application in it: See S Gardbaum, 'The 'Horizontal Effect' of
Constitutional Rights' (2003) 102 Mich. L. Rev. 388 PAGE#.
23
See Hogg, supra note ___, at 101. See also Pepsi-Cola Canada Beverages v. R.W.D.U. [2002] 1 S.C.R.
156 PAGE#; Dagenais v. CBC [1994] 3 S.C.R. 835 PAGE#.
24
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd [1986] 2 S.C.R. 573.
25
For this duty, see infra, at ___.
9
c. The Application through the Judiciary Model
The third model is the application on the judiciary.26 The starting point is that
constitutional rights are directed towards the state alone. However, the judge is a state
organ, and therefore the constitutional right is directed towards him. According to this
model when the judge speaks, the state speaks; when the judge acts the state acts. The
judge is the state and human rights need to be protected vis-à-vis him as well. The
meaning of the latter, from the judge’s point of view, is two-fold: Firstly, he must
develop the common law in a fashion that conforms to his duty not to disproportionally
limit constitutional rights. Secondly, he must act within the confines of the specific
dispute in a fashion which conforms to the parties’ constitutional rights vis-à-vis the state.
This model was developed in American constitutional law, wherein constitutional
rights are directed towards the state. In the New York Times Co. v. Sullivan case27 it is
triggered regarding the development of the rules of defamation in tort law. In this case,
the discussion concerned a claim of defamation filed by Sullivan (a public figure) against
the New York Times. It was decided that the court must develop the common law of
defamation according to the first amendment. In the Shelley v. Kraemer case28 it was
applied to prevent discriminatory remedies in individual disputes. Here, the Shelley
family (an African-American family) had purchased a home. Kraemer lived in that same
neighborhood. He applied to the court in order to prevent the Shelley family from
gaining possession of the home as the latter would have contradicted a restrictive
covenant applicable on the house, according to which a "Negro" cannot purchase the
26
For this model, see Gardbaum, supra note *. PAGE#
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
28
Shelley v. Kraemer, 334 U.S. 1 (1948).
27
10
home. The Supreme Court ruled that a judge cannot provide an injunction which would
limit the principle of equality found in the Fourteenth Amendment.
The third model – so long as it is regarding an individual dispute – is wrong.29 It
is not accepted in comparative law, neither has it been developed in America. Despite
this, the third model is correct when it concerns the common law. According to my point
of view, the common law is subject to the general constitutional structure.30 A common
law precedent may lawfully limit a constitutional right. To do so, it must fulfill the
requirements of the limitation clause – it must be proportional.31 Therefore, I believe that
New York Times Co. v. Sullivan case32 was rightly decided. This is not the case in Shelley
v. Kraemer.33 When the time comes for the judge to grant an injunction, he must act
according to the rules of the common law which is the legal framework where the rules of
the restrictive covenant and its enforcement were developed. If these rules allow for the
non-granting of a discriminatory injunction – he must act according to these rules. If
these rules determine that there is room to grant an injunction order, even if it is
discriminatory – he has the duty to lead to a change in these rules (only if he is authorized
to do so according to the judicial hierarchy (for example if the matter is brought before
the supreme court) or according to the rules of judicial power (in the federal law
system)). The rules of the common law cannot limit constitutional rights, unless they
fulfill the requirements imposed by the legislation limiting the constitutional rights. So
long as the common law is not changed – he must act according to the rules of the
common law. If not, the constitution’s provisions, which see the right to equality as a
29
See the word of Justice Mcintyre in the Dolphin Delivery case, supra note ___, at 443.
See Barak, Proportionality, supra note *, at 118. See also infra note *.
31
Id., at 121.
32
See supra note ___.
33
See supra note ___.
30
11
right vis-à-vis the state alone and not vis-à-vis other individuals, becomes suddenly a
right to equality vis-à-vis another individual. The judge is not empowered to do so. If a
constitution’s provision regarding the right to equality applies vis-à-vis the state alone,
and not on the relationship between individuals, there is no room for the conclusion that
when a dispute between individuals comes to court, the judge must determine the dispute
in an equal manner. This conclusion voids the constitutional provision according to
which the right to equality applies on the relationships between the individual and the
state only.
Indeed, Shelley v. Kraemer’s ruling was not sustained.
Instead, the courts
developed the doctrine of State Action.34 The application of the constitutional rights
included in the Bill of Rights vis-à-vis the judge are conditional that the individual, who
according to the claim, limits the constitutional rights in his relationship with others,
carries out functions which are traditionally the State’s. A significant amount of case law
has been dedicated to this matter and has determined when the nexus between the State
and the individual is sufficiently close, so close that it is possible to attribute the behavior
to the State.
This doctrine overrules, albeit not explicitly, the ruling in Shelley v.
Kraemer. In light of the development of this doctrine, American law should no longer be
seen as a system which adopts the model of the application through the judiciary. There
are those who believe that the American approach adopts the indirect application.35
d. The Indirect Application Model
34
See E Chemerinsky, Constitutional Law: Principles and Policies 518 (3rd. Ed., Aspen Law & Business
2006).
35
See Gardbaum, supra note ___. PAGE#
12
The fourth model is that of indirect application.36 According to this model, the
individual’s constitutional rights apply directly vis-à-vis the state and indirectly vis-à-vis
an individual. The individual should not fill the shoes of the state, which possesses the
duty concerning constitutional rights. An individual does not have constitutional rights
vis-à-vis another individual. The rights between the individuals are at the subconstitutional level (statute or common law) and not at the constitutional level. Indeed,
"the state's duties to uphold human rights are not the same content-wise as the
individual’s duty to uphold human rights".37 "The duty of the state to act equally vis-àvis the individual is not the same content-wise as the individual’s duty to act equally visà-vis another individual".38 The individual’s freedom of occupation vis-à-vis the state is
different in scope than the freedom of occupation of the individual vis-à-vis another
individual.
However, the individual’s constitutional rights vis-à-vis the state apply
indirectly on the relationships between individuals. This indirect application is based on
the assumption that each of the individual’s constitutional rights vis-à-vis the state have
an objective value aspect which is projected itself onto all of the law’s branches. This
means that the individual’s rights vis-à-vis the state to dignity, freedom, privacy and
property express objective values (but not rights) which shape the relationships between
individuals within private law. These values are used for the interpretation of the private
law, to complete lacunae in it or develop it. To the extent that the existing private law
limits "negative" constitutional right of the individual vis-à-vis the state, such law (statute
or the common law) is constitutional only if it is proportional. To the extent that such
This option is dubbed in German constitutional literature as “unmittelbare Drittwirkung”. For an analysis
of this approach see Alexy, supra note ___, at 351; Kumm and Comella, supra note ___. PAGE#
37
Civ. App. 294/91, Hevrat Kadisha GAHSHA “Kehillat Yerusalayim” v. Kastenbaum, [1992] PD 46(2)
464 PAGE# (J. Barak).
38
HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330 PAGE# (P. Barak).
36
13
existing law does not protect proportionally the "positive" individual right vis-à-vis the
state, the state must develop the private law to make it proportional.39
From the four models I discussed, this model is the proper one. It is accepted in
most legal systems where this problem has arisen.40 It applies within the framework of
the European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950).41
Amongst the legal systems which draw on the indirect application are
Germany,42 Italy,
43
the Netherlands44 and New Zealand.45 The indirect application
model recognizes the difference between the individual’s constitutional right directed
towards the state and the individual’s sub-constitutional (statute or common law) right
directed towards another individual. This difference is expressed in the normative status
of the right and its scope. Regarding the normative status – while the individual’s right
vis-à-vis the state is a right at the constitutional level, the individual’s rights vis-à-vis
another individual is at the sub-constitutional level. It is mostly found in private law. As
for the scope – the individual’s constitutional right vis-à-vis the state is more expansive
than the individual’s right vis-à-vis another individual. There are two reasons for this:
39
Regarding this obligation see infra, at ___.
See A Barak, 'Constitutional Human Rights and Private Law', in Human Rights in Private Law, supra
note *.
41
See, C. Ovey & R C A White (eds.), Jacobs & White: European Convention on Human Rights 38 (4th
ed., Oxford University Press, 2002); E A Alkema, 'The Third-Party Application of ‘Drittwirkung’ of the
European Convention on Human Rights' in G J Wiarda, F Matscher & H Petzold (eds.), Protecting Human
Rights: The European Dimension: Studies in Honour of Gerard J. Wiarda 33 PAGE# (Köln, C. Heymann
Publishers, 1989); R S Kay, 'The European Convention on Human Rights and the Control of Private Law'
(2005) 5 Eur. Hum. Rts. L. Rev. 466 PAGE#; A Clapman, 'The ‘Drittwirkung' of the Convention' in
Macdonald, Matscher & Petzold (eds.), The European System for the Protection of Human Rights 163
(Springer, 1993). For the approach in International Law, see J H Knox, 'Horizontal Human Rights Law,
(2008) 102 A .J. Int’l L. 1 PAGE#.
42
See Mak, Fundament Rights in European Contract Law, supra note ___, at 57.
43
See Id., at 104.
44
See Id., at 83.
45
See Hosking v. Runting (2004) 7 HRNZ 301. For an analysis of the case law, see A Geddis, 'The
Horizontal Effects of the New Zealand Bill of Rights Act, as Applied in Hosking v. Runting 2004 N.Z. L.
Rev. 681; P Rishworth, G Huscroft, S Optican & R. Mahoney, The New Zealand Bill of Rights 102 (Oxford
University Press, 2003).
40
14
first, the objectives of the constitutional right are at full force vis-à-vis the state. Second,
in determining the scope of the individual’s constitutional right vis-à-vis the state, one
should consider the rational at the right’s basis. No balance should be made on the
constitutional level between it and the considerations which justify the right’s limitation
(i.e., the public interest or rights of others).
Balances should be made only when
determining the constitutionality of the limitation of the constitutional right by a subconstitutional law.46 With regards to the determination of the scope of the individual’s
right vis-à-vis another individual, the scope of the right is determined by the subconstitutional law (such as a statute or common law) and is a product of the balancing
between the rational at the rights basis and the rational at the basis of the constitutional
rights of others or the public interest. The constitutionality of this balance is determined
by the limitation clause i.e., this sub-constitutional law is constitutional only if it is
proportional.
The indirect application model does not blur the distinction between the
individual’s constitutional right vis-à-vis the state and the individual’s right vis-à-vis
another individual. According to this model, the rights which exist between individuals
are not constitutional rights. They are not a part of the constitution, but rather, they are
part of the sub-constitutional law.
They are anchored in regular legislation or the
common law (such as contract, tort, property and labor law). The rights and remedies for
their breach have been shaped by private law over hundreds of years. In this shaping
there is significant weight given to the fact that the constitutional law recognizes the
existence of these rights vis-à-vis the state (vertical relationship). The existence of this
relationship affects directly the constitutionality of this sub-constitutional law, and it
46
See, Barak, Proportionality, supra note *, at 80.
15
effects the rights of individuals vis-à-vis the state. Thus sub-constitutional law affects
indirectly the rights between individuals (horizontal relationship). This influence is best
expressed in the interpretation of the norms in private law, in the completion of the
lacunae within it and the development of new and proportional private law. Hence the
difference between this approach and the non-application model. The none application
model creates a barrier between the constitutional rights and private law. This barrier is
cracked only when the lack of non-application model determines that the development of
the common law is affected by constitutional rights. The indirect application model takes
a much stronger position. The influence of the constitutional rights on common law is
extensive and much stronger in the indirect application model than in the non-application
model. Private law, made by statute or common law,47 infringes on the constitutional
right of each individual vis-à-vis the state, and therefore is subject to the limitation
clause.
The relationship between the indirect application model and the application
through the judicial model are complex. On the one hand, both models provide that the
constitutional rights apply only vertically. According to both models, the legislator and
the judge must act to suit legislation and common law to constitutional rights. For this
reason the decision in the New York Times Co. v. Sullivan48 case befits both models. On
the other hand, the indirect model option sees the constitutional rights as an objective
values working within private law and according to it. This is not true regarding the
application on the judiciary. The State Action doctrine, as it has been developed in the
United States, operates outside of private law. Its operation is within public law, and the
47
48
Id., at 118.
Supra note *.
16
constitutional right is directed not only towards the state, but also vis-à-vis individuals
carrying out the State’s functions.
3. The Indirect Application Models in Action
a. Constitutional Rights as Objective Values
The starting off point of the indirect application model is in the perception that
constitutional rights have both a subjective and objective aspect.49 The subjective aspect
is the duty that they impose on the state vis-à-vis the individual. Alongside the subjective
aspect there is an objective aspect (Objective Wertordnung).
Every subjective
constitutional right reflects an objective value. These objective values operate on all of
the law’s branches. Thus, for example, human dignity has two elements – subjective and
objective. The subjective element is expressed in the constitutional right to human
dignity granted to the individual vis-à-vis the state. The objective element is expressed
by the fact that human dignity is an objective value of the legal system in general and of
private law in particular.
This differentiation between the two elements of constitutional rights has been
expressed in the Luth case given by the German Constitutional Court.50 The case
examined the legality of Luth’s behavior, who asked the public to boycott a film directed
by a renowned Nazi. The movie’s producer applied to the civil court to prevent Luth
from demanding the film’s boycott. The civil court ruled that Luth’s behavior is a civil
wrong, as it falls within the boundaries of Section 826 of the B.G.B. which sets:
The use of the terms “subjective” and “objective” in this context was taken from German constitutional
theory. The subject aspect regards the individual’s right vis-à-vis the state. The objective aspect is
regarding the constitutional value which applies on all relationships in the law.
50
BVerfGE 7, 198 (1958).
49
17
Whoever causes damage to another person
intentionally and in a manner offensive to good
morals is obliged to compensate the other person for
the damage.
Luth applied to the Constitutional Court.
He claimed that the ruling limited his
constitutional right to freedom of expression. The Constitutional Court ruled that Luth’s
constitutional right to freedom of expression is an objective value of the legal system.
The term “good morals” found in section 826 of the B.G.B. should be interpreted in a
manner consistent with this objective value.
Considering the case’s circumstances,
Luth’s behavior should not be considered as offensive to “good morals.”
Luth’s constitutional right to freedom of expression is directed towards the state
alone. Luth has no constitutional right to freedom of expression vis-à-vis the film’s
producer. However, in the relationship between Luth and the producer the objective
value of freedom of expression does apply. This value influences the meaning of the
private law’s provisions on "good morals" and other "valve concepts" of private law.
We will now examine the different channels through which the objective aspects
of the constitutional right affects private law (statute or the common law). I will discuss
three main channels: (1) The interpretation of the private law; (2) referring to the gaps
and the negative arrangement in private law; (3) developing private law.
b. First Channel of Application: Interpreting Private Law
I. The Objective Aspects of Constitutional Rights and the
Interpretation of Private Law
The indirect application model assumes that constitutional rights apply only on
the relationship between the individual and the state. However, each of the individual’s
18
constitutional rights vis-à-vis the state expresses one of the legal system’s objective
values. This objective value is not limited to the relationship between the individual and
the state.
It applies to all legal fields, and all legal relationships, including the
relationship between individuals. It applies on private law.51
These objective value elements – derived from the individual’s constitutional
rights vis-à-vis the state – have significant importance in private law. It is expressed in
the interpretation of statutory private law. This interpretation in Israel is purposive
interpretation.52
According to this interpretation, the statute text is given the
interpretation which fulfills its purposes. This purpose, on a high level of abstraction
includes the fundamental values of the legal system.53 These make up “a normative
umbrella spread out above all legislation.”54 The latter expresses the fact that the law is
“a living creature within its environment.”55 The law’s environment includes “not only
the legislative context in proximity, but also extended circles of accepted principles,
fundamental purposes and basic standards.”56 These fundamental principles include the
objective values at the foundation of the constitutional rights. These values penetrate into
private law through purposive interpretation. Therefore, the rules of contract, tort or
property found within private law should be interpreted in a manner which fulfills human
dignity, liberty, property and the other objective values derived from constitutional rights.
51
CA 6601/96 AES System Inc. v. Saar [2000] IsrSC 54(3) 850 PAGE#.
See Barak, Purposive Interpretation, supra note *, at 370.
53
Ibid., 381.
54
See CA 165/82 Kibbutz Hatzor v Assessing Officer, [1985] 39(2) IsrSC 70, 75 (J. Barak). See also CA
2000/97 Lindorn v. Carnit – Road Accident Victims Fund [1999] IsrSC 55(1) 12, 29: “Alongside the
specific purpose at the foundation of the defendant’s right is the general purpose. This is an objective
purpose. It reflects the core values of the system … it is an expression of the understanding that legislation
is not a one-off act of a passing legislator, but rather a link of legislative creation of a permanent legislator.
It makes up a “normative umbrella” spread above all of the legislation…. This general purpose “trickles”
into the purpose of all legislation. It is an expression of the structure of the system and its values”(P.
Barak).
55
HCJ 58/68 Shalit v. Minister of the Interior, 23(2) [1970] P.D. 477, 513.
56
Kibbutz Hatzor case, supra note ___, at 75.
52
19
Like all fundamental principles which shape statutory's purposes, they are in
constant conflict.57
The objective aspect of one constitutional right (freedom of
expression) conflicts with the objective aspect of a different constitutional right (privacy).
Sometimes the objective aspect of the constitutional right conflicts with objective
principles like public interest, such as security, public order and health. This conflict is
not solved by the “victory” of one objective aspect and the “loss” of another or that of the
public interest. The solution to this conflict within the legislative purpose is through
balancing between the conflicting values according to their importance at the decision
point. This is an interpretive balancing.58 Interpretive analogy can be used for the needs
of this balancing from the element of proportionality stricto sensu from the rules of
constitutional proportionality.59 However, the limitation clause has no application. We
are dealing here with a balancing for purposive interpretation and not for constitutional
validity.
II. The Interpretation of Valve Concepts
i.
Interpretation in Light of the Objective Aspects of
Constitutional Rights
A special case of the interpretation of the private law exists when private law uses
valve concepts (ventilbegriffe; conceffi volvola). Examples of these are good faith, public
policy or negligence. These are shaped as principles (to distinguish from rules).60 They
reflect society’s values and its basic principles. They provide the legal system with the
57
See Barak, Purposive Interpretation, supra note *, at 153.
Regarding the interpretive balancing, see Barak, Proportionality, supra note *, at 72.
59
Id., at 75.
60
Regarding the differentiation between principles and rules in this context, see Id., at 70.
58
20
appropriate flexibility. With their help, the legal system conforms to changing needs, yet
still remains true to itself. Both legislation and the common law use these valve concepts
to prevent stagnation within the law and to match up the law to changing conditions.
The interpretation of the valve concepts which apply in private law is done on the
background of the basic values of the legal system. These include the objective aspects
of the constitutional rights to human dignity, freedom, property, privacy, freedom of
movement and occupation. Indeed private law’s valve concepts take on a meaning which
is influenced by the objective aspect of constitutional rights. This objective aspect has a
“radiating effect” on the valve concepts.61 The valve concept’s content is determined
through the interpretive balancing between all the values which express it, and, within
them, the objective aspect of the subjective constitutional rights. I will demonstrate this
through two of private law’s important valve concepts: public policy and good faith.
ii.
Public Policy
One of the most important valve concepts is public policy. It operates in both
public and private law alike. Through this concept “the legal system ensures the constant
flow of fundamental values into the private law. This ensures harmony in the legal
system.
Through ‘public policy’ the legal system ensures the proper behavior in
interpersonal relationships.”62
Main components of public policy are the values which make up the objective
aspect of constitutional rights. Public policy is the fulfilling of values such as human
dignity, freedom, privacy, property and freedom of occupation.
61
62
Regarding the “doctrine of radiation,” see Alexy, supra note *, at 352.
Recanat case, supra note ___, at 363 (P. Barak).
21
Needless to say,
alongside these values are additional values which reflect the public interest. These
values are in conflict. “Often these basic principles conflict with one another…. One’s
freedom of occupation limits another’s freedom of contract.
expression limits another’s human dignity.
One’s freedom of
This is particularly obvious within the
framework of “public policy” in contract law, as one of the basic principles of our legal
system is the principles regarding freedom of contracts … and one of the fundamental
rights of man that should be considered is that of the autonomy of the individual’s will.
This is part of human dignity and freedom. Contractual relationships are an expression
of this autonomy. Freedom of contracts is a constitutional right. When the contract’s
content limits freedom of occupation, human dignity, freedom of movement, freedom of
conscience and religion or freedom of expression – ‘public policy’ should not be shaped
based on a simple use of these principles.”63 The solution to this conflict is found
through proper balancing which reflects the relative importance of conflicting values. “In
determining the scope of ‘public policy’ there must be an internal balance between
conflicting interests and values.”64
Thus “only when the weight of the principles
regarding freedom of contracts and the autonomy of the individual’s will is smaller than
the weight of the opposing value – only then is there room to void a stipulation in a
contract, or the entire contract, due to a conflict of public policy.”65 J. Procaccia was right
to state that "determining the scope of public policy requires a delicate and complicated
balance between conflicting values and interests".66 This balancing may learn, through
CA 294/91, Hevrat Kadisha GAHSHA “Kehillat Yerusalayim” v. Kastenbaum, [1992] IsrSC 46(2) 464,
533 (J. Barak).
64
CA 5258/98 A. v. B., [2004] IsrSC. 48 (6) 209, 222 (P. Barak). See also CA 6601/96 AES System Inc. v.
Saar [2000] IsrSC 43 (3) 850, 864.
65
Hevrat Kadisha GAHSHA “Kehillat Yerusalayim" case, supra note ___, at 533 (J. Barak).
66
CA 11081/02 Dolev v. Sigalit Kadosh (not yet published, given on 25.06.2007), at para. 18 (J.
Procaccia).
63
22
interpretive analogy, from the rules of balancing set forth in the rules of constitutional
proportionality.67
iii.
Good Faith
Good faith, for the purpose of this essay, is an objective standard. It expresses a
standard of honesty, fairness and allegiance between adversaries.68
It is meant to
determine that a person ensuring their matters, must do so in a manner which is fair and
all the while considering the other party’s justifiable expectations. "Human being to
human being, one cannot behave like a wolf, but one is not required to be an angel.
Human being to human being, one must act like a human being.”69
The honesty and fairness between rivals are required by good faith and shaped by
the values which make up the objective aspect of the constitutional rights. Good faith
reflects the consideration of objective values regarding human dignity, privacy, property
and liberty. Good faith is indeed a “pipeline”70 through which the objective values of the
legal system flow through, and reflect the values of the constitutional right into private
law. Additional values, related to the interpersonal behavior of those with opposite
interests, also flow into it. These values are in constant conflict. Good faith reflects the
proper balance between them. This balance expresses the relative social importance of
67
See Barak, Proportionality, supra note ___, at 101.
FH 22/82 Beit Yules v. Raviv Moshe [1989] IsrSC 43(1) 441, 484; CA 1966/07 Amalia Ariel v. The
Pension Fund of Eged Members Ltd. (not yet published, given on 9.08.2010).
69
LCA 6339/97 Roker v. Salomon [1999] IsrSC 55(1) 199, 279 (P. Barak). See also HCJ 59/80 Be'er Sheva
Public Transport Services v. Beit Hadin Haartzi Leavoda [1980] IsrSC 35(1) 828, 834; Beit Yules, supra
note *, at 484.
70
Roker case, supra, at 279.
68
23
the conflicting values.71 In determining this balance it is possible to learn, through
analogy, from the rules of balancing that are part of constitutional proportionality. 72
III. Interpretation of Private Law and its Validity
What is the case if the interpretation of private law – interpretation which takes
into consideration the objective aspect of the constitutional rights – leads to a result
which does not completely express this aspect? This occurs when private law determines
arrangements which do not match up with the interpretive balance between the objective
aspects of constitutional rights or between the other constitutionally protected objective
values. What is effect of this private law? The answer is that the constitutionality of this
private law will be tested. Indeed, this private law is an act of the state (whether
legislation or common law). To the extent that this private law can limit the individual’s
constitutional rights vis-à-vis the state, the limitation will lead to the unconstitutionality
of the private law unless it fulfills the requirements of the limitation clause in general and
the requirements of proportionality stricto sensu within it in particular.
Thus, the
radiation of the objective values at the foundation of constitutional rights onto private law
does not ensure, in and of itself, that this private law is constitutional. It is possible that
due to linguistic limitations, and the existence of additional and contradictory values, the
means used by legislation and its interpretation, will lead the interpreter to conclude that
private law limits individuals’ constitutional rights vis-à-vis the state, and that this
limitation is not proportional.
71
72
See Barak, Proportionality, supra note ___, at 430.
Id., at 101.
24
c. The Second Channel of Application:
A Negative Arrangement and
Lacunae
I. The Silence of Private Law
The interpretation of private law assumes the existence of relevant legal text.
What happens if this text does not exist? If the absorption of the constitutional rights as
objective values in private law is done through private law’s provisions – what happens if
there is no relevant private law? Is this really the failure point of the indirect application?
In order to answer this question we must list the different meanings of silence in
private law.73 This silence has different voices. For this purpose, the two relevant
meaning that can be given to such a silence are negative arrangement and lacuna.
II. Negative Solution
A negative solution is based on an interpretive conclusion, according to which the
solution determined in the law contains an implicit negative solution regarding matters
not regulated by law. At times the negative solution will reflect the objective aspects of
constitutional rights. In this situation, the indirect application is resolved by the negative
solution. But what is the case if a negative solution refuses the radiation stemming from
the constitutional right’s objective values? What is the destiny of the indirect application
is this situation? Does the latter mean that the indirect application of constitutional rights
is not possible?
My answer is that the non-expression of the objective aspects of constitutional
rights may disproportionally limit the individual’s constitutional rights vis-à-vis the state
who determined the negative solution. The result may be that the negative solution is
73
See Barak, Purposive Interpretation, supra note ___, at 67.
25
unconstitutional. Indeed, the destiny of a negative solution regarding constitutionality is
the same as that of a positive solution regarding constitutionality.
They both can
disproportionally limit the individual’s constitutional right vis-à-vis the state.
III. Lacunae
We assume that the private law does not determine a text which should be
interpreted with the constitutional right’s objective aspect in the background. We also
assume that the lack of legislative text stems from a lacuna. Is the significance of the
latter that there is no room for indirect application?
In order to answer this question we must first examine the rules of lacunae and the
reaction to the lacunae. If the court does not have the authority to complete the lacunae
in the legislation – as is the case in most common law legal systems74 - then the lacunae
remains as it. The solution to this legal problem will exhaust itself within the boundaries
of the common law. The common law makes up a “security net” which is meant to solve,
amongst others, most of the legislative lacunae. The only thing to examine is if this
common law – similar to that of a negative solution – is constitutional.
In most
continental legal systems and in Israel, the court has the authority to complete a lacuna in
the law.75 This complementary law is based on completion through analogy from a
similar legislative norm from private law. Without a suitable analogy the judge looks to
the general principles.
Completion of lacunae is not merely an authority given to the judges. It is a duty
imposed upon them. Once the lacuna in the legislation has been discovered, the judges
74
75
See Id., at 69.
Id.
26
must complete it according to the rules used in their legal system to do so. Once the
completion of the lacuna has been completed, new law has been added to private law.
This complementary law was created by the judicial authority. This is sub-constitutional
law. It adds a complementary norm to the legislation. Like the rules of the common law,
this rule may also limit the individual’s constitutional right vis-à-vis the state. The
constitutionality of this limitation will be determined according to its proportionality.
d.
Third Application Channel: Creating New Private Law
I.
New Legislation and Developing the Common Law
The interpretation of private law – including its valve concepts – may lead to the
conclusion, that these solutions cannot “absorb” the radiation of the objective aspect of
the constitutional rights. In addition, this interpretation may lead to the conclusion, that
the lack of solution in private law regarding the absorption of objective values is not a
negative solution nor does it mean there is a lacuna. Has this situation led to the end of
the road of the indirect application model? My answer is in the negative. If private law
does not exist – it should be created. The legislator (in the framework of the legislation)
and the judge (in the framework of the common law) cannot wash their hands of this.
They should create new law (legislative or case law) which can express the objective
values of the constitutional rights.
II.
New Legislation
Much of private law is legislated. If there is no legislation which can “absorb” the
objective aspects of constitutional rights, there is no escape from new legislation. The
27
legislator will legislate new laws to solve the problem not yet solved in private law.
Through its content, the new legislation will express the objective aspect of the
constitutional rights.
This will be done through the legislative recognition of new
individuals’ sub-constitutional rights vis-à-vis other individuals.
III.
The Development of the Common Law
In the common law legal systems the judge’s power to create law is recognized.
Contracts and Torts law in most common law legal systems are case law, where little
legislation is involved. This development in the case law must take place here as well.
When a judge encounters a legal problem regarding an interpersonal relationship whose
basic values are derived from the objective aspect of the individual’s constitutional rights
vis-à-vis the state, the judge should develop the common law in a manner that the basic
constitutional values will be absorbed into private law. The development of the common
law will translate the objective aspect of the constitutional rights into sub-constitutional
law creating rights of individual vis-à-vis other individuals. This approach was adopted
by the Constitution of South Africa that provides:76
(a)in order to give effect to a right in the Bill, must
apply, or if necessary develop, the common law to
the extent that legislation does not give effect to that
right; and
(b) may develop rules of the common law to limit the
right, provided that the limitation is in accordance
with section 36(1).
76
Section 8(3) of the Constitution of South Africa, Supra note 4. See also South African cases, supra note
*.
28
From this provision it appears that the development of the common law is the duty of the
judicial authority. It is needless to repeat that this development of the common law is
possible only when the legislation does not determine a contradictory solution. The
common law cannot change legislation. The judicial activity in the development of the
common law, like in Holmes’ much quoted phrase, is "interstitially".77
The Supreme Court of Israel acted along these lines when it recognized
compensation for a limitation of the individual’s will where surgery was carried out
without the patient’s informed consent.78 Similarly the Supreme Court was asked to
recognize procedural arrangements which would allow for the exposure of the identity of
online commentators for slander. The request was denied by the majority.79
IV.
Proportionality of new legislation and the Development of
the Common Law
New legislation and the development of common law must be proportional.
Indeed, development of private law by the legislature or the judiciary is a state action.
This action may limit a constitutional right of an individual. This limitation will be
constitutional only if it's proportional.80 Therefore it must secure that the balance between
the conflicting objective aspects will coincide with the balance between the individual's
constitutional right vis-à-vis the state and the constitutional rights of others. This balance
will be determined by proportionality stricto sensu.
77
See Southern Pacific Co. v. Jensen, 244 U.S. 205, 221.
CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526.
79
RCA 4447/07 Rami Mor v. Barak ESS [1995] The Company for International Telecommunications Ltd.
(not yet published, given on 25/03/2010).
80
See Barak, Proportionality, supra note *, at 118. See also sec. 8(3)(b) to the Constitution of South Africa,
Supra *.
78
29
V.
New Legislation and the Development of the Common Law
– Discretion or Obligation?
i.
Negative and Positive Rights
The indirect application model is based on existing private law, including the
completion of lacunae, which “absorbs” the objective aspect of the constitutional rights.
Where such private law does not exist, the absorption of the objective aspect will be
carried out by the new law anchored in legislation or common law, which develops
private law. The question that arises in this matter is, is the development of this private
law a discretionary activity by the legislator (in developing legislation) or the judge (in
developing the common law) or a duty imposed upon them? If development of private
law is not an obligation it raises the question of the efficiency of the indirect application
model.
The answer to this question leads us to an important issue of constitutional law,
regarding the “positive” aspect of constitutional rights.81
The question is if the
constitutional rights are but negative rights, meaning, rights which impose duties on the
state (legislative, executive, judiciary) not to limit the right holder, or whether they are
also positive right, meaning, those rights which impose a duty on the state to protect the
right holder. When the approach is that the state duty is only a negative one, no duty to
protect the individual’s constitutional right is imposed. This means the lack of duty to
81
Regarding this issue, see Barak, Proportionality, supra note *, at 422. See also Dieter Grimm, The
Protective Function of the State in European and U.S. Constitutionalism 137 (George Nolte ed., 2005);
Alastair Mowbray, The Development of Positive Obligations Under the European Convention on Human
Rights by the European Court of Human Rights (2004); Sandra Freedman, Human Rights Transformed:
Positive Rights and Positive Duties (2008); Henry Shue, Basic Rights: Subsistence, Affluence, and U.S.
Foreign Policy 155 (2nd. Ed., 1996).
30
develop the private law in the spirit of the indirect application model. If, on the other
hand, the duty of the state is also a positive duty, then the state must protect the
individual’s constitutional rights vis-à-vis it from infringement by another individual.
The state will have fulfilled its duties by developing the law according to the objective
aspect of the constitutional right. The state will do so inter alia, if it recognizes the subconstitutional right of the right holder vis-à-vis other individuals. It will make up part of
the private law.
The answer to the question of the “positive aspect” of the constitutional rights
changes from legal system to legal system.
principle, the positive aspect.82
American law does not recognize, in
The Bill of Rights is meant to prevent limiting
constitutional rights by the state. They are not meant to impose upon it the duty to
protect the individual. Other legal systems recognize the positive aspects of a number of
rights, but not them all.83 German constitutional law recognizes the general positive
aspect of all constitutional rights (the schutzplicht).84 This is the case in the Constitution
of South Africa.85
The situation in the Israeli legal system is not free from doubt. It seems that the
right to life, body and dignity has both a positive and negative aspect.86 The negative
82
See Jackson v. City of Joliet, 715 F. 2d 1200, 1203 (1982).
For example the European Convention on Human Rights recognizes the positive aspect of a number of
rights. See Mowbray, supra note ____.
84
See Dieter Grimm, The Protective Function of the State, in European and US Constitutionalism (Georg
Nolte ed., 2005)ALREADY CITED IN FT. 81.
85
See Section 7(2) of the Constitution of South Africa (1996) ALREADY CITED IN FT. 4.
86
See HCJ 2557/05 Mate Harov v. Israeli Police [2006] 62(1) IsrSC 200, at para. 14 (P. Barak); CrimA
5121/98 Issacharov v. Head Military Prosecutor [2006] 61(1) IsrSC 461, at para. 62 THIS PARAGRAPH
DOESN'T SEEM TO DIRECTLY DISCUSS THE POSITIVE AND THE NEGATIVE ASPECTS OF
THE RIGHTS (J. Beinish); HCJ 6427/02 MGQ v. the Knesset [2006] 61(1) IsrSC 619, at para. 31 (P.
Barak).
83
31
aspect (the state's duty not to limit a constitutional right) is expressed in section 2 of
Basic Law: Human Dignity and Liberty:
There shall be no limitation of the life, body or
dignity of any person as such.
The positive aspect (the state's duty to protect the constitutional right) is determined in
section 4 Basic Law: Human Dignity and Liberty:
All persons are entitled to protection of their life, body and
dignity.
Through this positive aspect the state in Israel is under a duty to protect the individual’s
life, body and dignity from their infringement by other individual’s.87 The question which
has not yet been resolved in Israel is if the positive aspect of the constitutional right
applies only regarding the right to life, body and dignity included in Section 4 of the
Basic Law or does it extend onto the entirety of the constitutional rights in this Basic Law
(property, liberty, mobility, privacy) and in Basic Law: Freedom from Occupation
(freedom of occupation).
Recognizing the positive aspect of the constitutional right (all or some of them)
raises two questions. First, do we find vis-à-vis the state's duty the individual’s right?
Second, how can an individual realize the positive duty?
ii.
Fulfilling the Duty in Positive Rights
Regarding the first question, I believe that if a duty is imposed onto the state to
protect certain values, then opposite said duty stands the individual’s right.88 The state's
duty is the individual’s right. Indeed, Basic Law: Human Dignity and Liberty, explicitly
87
HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] 60(3) IsrLR
464, 479 (P. Barak).
88
See Grimm, supra note ___, at 153; Alexy supra note ___, at 301.
32
states that “all persons are entitled”89 to protection of their life, body and dignity. Human
dignity is not only a "negative" right, but also a "positive" right. There is a constitutional
obligation on the legislature, the executive and the judiciary to protect positive rights of
individuals. It is not at their discretion – it is an obligation. Therefore, the judiciary is
obliged to develop the common law in a manner that will guarantee protection of his
rights vis-à-vis the state.90
How does the individual fulfill his positive right? My answer is that he will do so
in one of the fashions available to him to realize his negative right.
The German
Constitutional Court has more than once ordered the legislature to use its legislative
powers to fulfill the positive aspect of the constitutional rights. 91 In common law legal
systems the right holder can ask the court to use its power to create common law.92
Needless to say, if this common law is not to the legislators liking, it has the power to
void or change this case law.
The positive aspect of the constitutional rights – similarly to the negative aspect –
does not recognize an absolute positive right. This is a relative positive right. It can be
limited by a proportional legal provision (statute or common law). Therefore, if not
every positive aspect of the constitutional right is protected by the legal system, it is
possible that this situation is constitutional as it is also proportional.93 New legislation
that protects the positive right must be proportional. This is the case also for new
89
Section 4 of Israeli Basic Law: Human Dignity and Liberty, supra note ___.
See Carmichele case, supra note *, in which the South African constitutional court imposed the courts to
develop tort law so that it will recognize the duty of the police to take actions in order to protect individuals
from the aggression of other individuals. See also, supra note 7.
91
See Grimm, supra note ___, at 153. See also Oliver and Fedtke, supra note ___, at 153.
92
See Rami Mor case, supra note * PAGE# (J. Rubinstien).
93
See Barak, Proportionality, supra note ___, at 429.
90
33
common law. Legislation which voids or changes the common law and fulfills the
positive aspect is constitutional only if it is proportional.
4. The Indirect Application in Israel
Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation
determines a list of constitutional rights. The language of the Basic Laws does not
determine who is the right holders. There is no explicit determination to the question if
these rights are directed towards the state only or also towards other individuals. Both
Basic Laws set forth that “all governmental authorities are bound to respect”94 the rights
determined within them. It was not determined that this obligation is imposed only onto
the state. The question of the application of the constitutional rights in interpersonal
relationships (horizontal), is seemingly open and given to interpretive determination by
the court.
The issue arose for the first time during the Hevrat Kadisha GAHSHA
“Kehillat Yerusalayim” v. Kastenbaum case.95 This case dealt with the question if
relatives of the deceased are granted the right to add onto the tombstone, the deceased’s
name in Latin letters as well as her date of birth and death in numbers. In my opinion I
noted that this right can be based on the rules of private law. In this context I mentioned
that the condition regarding having solely Hebrew letters which arises from the contract
signed by the deceased’s husband, is contrary to public policy and is therefore void. This
conclusion was based on the indirect application model, while noting that the question of
94
Section 11 to Israel's Basic Law: Human Dignity and Liberty, supra note ___; Section 5 to Israel's Basic
Law: Freedom of Occupation, supra note ___.
95
supra note ___.
34
direct application remained open.96 The line of thinking through which the case was
examined was that “the basic principles of the system in general and a person’s human
rights in particular are not limited to public law. The differentiation between public and
private law is not so severe. The legal system is not a confederation of legal fields. It
makes up a unification of method and justice. Therefore, basic principles are principles
of the entire system, and not solely of public law."97 The question I discussed in my
opinion was “how do basic principles of public law flow into private law, and from there
they are delivered into the individual’s behavior in his relationship with other
individual’s.”98 In my answer I referred to the principles of interpretation.99 In addition,
I mentioned that “private law includes a number of doctrines, which use tools through
which the basic principles of the system in general and the person’s basic rights in
particular flow into private law.”100 One of those doctrines is that of public policy. I
noted that “this provision … channels into private law the basic principles of the law in
general and basic human rights in particular.”101 I emphasized that “by transferring the
basic principles of the system in general and the person’s human right in particular from
public law into private, they were changed. The state's duty to fulfill human rights is
different in content to the individual’s duty to fulfill human rights. It is clear the state's
duty is more severe and that the protection of basic right vis-à-vis it is more expansive.
However, every individual must also respect another individual’s basic rights. Indeed,
the individual’s duty to fulfill the other’s basic rights is derived from the same source that
96
Ibid., at 530.
Id.
98
Id.
99
Id.
100
Id.
101
Id., at 531.
97
35
the state's duty is derived from – these are the basic social understandings and the basic
legal principles that the legal system is built upon.”102
The question of the indirect application arose again in the AES System Inc. v. Saar
case.103 In this case an employee signed a non-compete agreement. The question was if
this agreement was valid. Like in the Hevrat Kadisha GAHSHA “Kehillat Yerusalayim”
case,104 it was decided that the agreement is void as it contradicts public policy. The
indirect application model of constitutional rights has been recognized in all fields of
private law.105 Thus, for example, it applies in contract law,106 tort law,107 property
law108 and labor law.109
5. Conclusion
With the recognition of the state’s duty to act – as well as the scope of this duty –
the cycle is complete.
The subjective constitutional right which operated in the
relationship between the individual and the state on the constitutional level becomes the
individual’s subjective sub-constitutional right vis-à-vis other individuals.
metamorphosis takes place through three stages:
This
During the first stage objective
constitutional values are drawn from subjective constitutional rights. During the second
102
Id. See also CA 3156/98 Ben Yishai v. Veingarten [1999] 55(1) IsrSC 939, 952 THE QUOTE DOESN'T
SEEM TO APPEAR ON THIS PAGE.
103
Supra note ___.
104
Supra note ___.
105
See Hoffman, supra note *.
106
Elhannani case, supra note ___ NOT CITED ABOVE. Daphne Barak-Erez and Israel Gilad, Human
Rights in Contract Law and Tort Law: The Quiet Revolution, 8 Kiryat Hamishpat 11 PAGE#(2009)
(Hebrew). See also Deeksha Bhana & Marius Pieterse, Towards a Reconciliation of Contract Law and
Constitutional Values: Brisley and Afrox Revisited, 122 S. Afr. L.J. 865 PAGE#(2005).
107
Id PAGE#.
108
See Hanoch Dagan, Property: Values and Institutions PAGE# (2011).
109
See Aharon Barak, Constitutional Rights and Private Law: Application in Labor Law in Elisheva (Elika)
Barak Book PAGE#/CHAPTER#?(forthcoming, 2012). See also Labor Appeal No. 90/08 Isakov
Inbar v. The Commissioner for Women Labor (not yet published, Feb. 8, 2011), at para. 8; Labor Appeal
No. 3368-08-10 Dizingoff Club v. Zoili (not yet published, Nov. 16, 2011), at para. 11, 25 (P. Arad).
36
stage these objective values penetrate into private law – through interpretation and the
completion of lacunae. During the third stage, the objective aspect of the constitutional
right penetrates into private law through new legislation or new common law. If this
legislation and development are the legislator’s and the judge’s duty – as there are if the
legal system recognizes positive rights – then they have fulfilled their duty through the
legislative or common law recognition of subjective rights at the legislative or common
law level (at the sub-constitutional level) of the individual vis-à-vis the individual. This
sub-constitutional law is constitutional only if it is proportional.
It is important to note, that the indirect application model affects the interpersonal
relationships. However, it does not turn these relationships into constitutional
relationships. At the constitutional level is the relationship between the individual and
the state. The relationship between individuals, whose content is affected by the indirect
application, is not at the constitutional level. It is at the sub-constitutional level. It is
planted into the private law (statute or common law). The constitutional level expresses
the individual’s constitutional right vis-à-vis the state to its fullest extent.
The
constitutional possibility to limit this scope does not reduce it, but rather affects the
constitutionality of the sub-constitutional law which limits it.110 This sub-constitutional
norm – which reflects the private law as it was designed according to the effects of the
indirect application – does not express the full scope of the constitutional right. Private
law will express the constitutional right as it was limited by the other’s constitutional
right and by the public interest. The individual’s right in the private law vis-à-vis another
individual, will always be narrower in scope than the individual’s right vis-à-vis the
110
See Barak, Proportionality, supra note ___, at 32, 83.
37
state.111 The individual’s right vis-à-vis another individual, within private law, reflects the
proportional limitations on the fulfillment of the constitutional right. It is an expression
of the understanding that the individual’s constitutional right vis-à-vis the state is
conveyed into the private law as an individual’s right vis-à-vis another individual. This
right expresses the proportional limitations on the realization of the constitutional right
vis-à-vis the state in private law. While the scope of the individual's constitutional right
vis-à-vis the state is wider than the scope of the sub-constitutional right, the realization of
the constitutional right vis-à-vis the state also happens within the sub-constitutional law.
Hence the similarity between the two. Nonetheless, this similarity does not mean they are
identical. This is due to the difference between the principles and values at the balance.112
In many cases, the result reached by indirect application model is not different
from the one achieved by direct application model.113 A study of comparative law
emphasizes that at times in the same legal system, two models of application are used,
without the court having defined the difference between them.114 A legal system (such as
German constitutional law) where all the stages occur – the transformation of a subjective
constitutional right into an objective value, the penetration of objective values into
private law through interpretation and the completion of lacunae, the duty to develop the
private law by the legislator – will make up solutions according to both very similar
methods of application. However, the difference between them should not be blurred.
The results will not always be the same; the objective aspect of every constitutional right
will not always be recognized; the purposive interpretation which grants an interpretive
111
Hevrat Kadisha case, supra note ___, at 531.
See Medical Organization case, supra note * NOT CITED ABOVE At para. 20 (J. Naor); Ben Yishai
case, supra note *, at 952.
113
See Kum & Comella, supra note ___.
114
See Oliver & Fedlke, supra note ___, at 520-557.
112
38
status to the objective purpose of every legal norm will not always apply; the legal
system will not always agree to the penetration of objective values into its valve
concepts; a duty will not always be imposed on the legislator and judiciary to develop
the law in a fashion which fulfills the objective aspect of the constitutional rights. In any
case where one of the stages is not activated in a complete fashion, the difference
between the direct and indirect application models will be emphasized. Even if all stages
are completely activated, there will still be a clear difference between the direct and
indirect application models. This difference is expressed by the fact that in the direct
application model the individual has a constitutional right vis-à-vis another individual.
The indirect application model does not recognize a constitutional right between
individuals. The indirect application model recognizes the individual’s sub-constitutional
right (legislative or common law) vis-à-vis another individual. This difference may have
little practical significance, because in both models the realization of the right, and the
remedies for its limitation, are on a sub-constitutional level. There may be little
difference between the content of a sub-constitutional law that realizes the right of an
individual vis-à-vis the state and the content of a sub-constitutional law that realizes the
right of an individual vis-à-vis another individual. Nonetheless, there is still a difference.
The reason for this is that the interests and values taken into account in forming a subconstitutional law that deals with the right of an individual vis-à-vis the state differs
greatly from the interests and values taken into account in forming a sub-constitutional
law that deals with the right of an individual vis-à-vis another individual.
:‫הערות מבניות‬
39
‫‪ .1‬רווחים אחרי סוף משפט – במרבית המשפטים (הן בגוף הטקסט והן בהערות השוליים) אחרי הנקודה‬
‫בסוף משפט מופיעים שני רווחים במקום רווח אחד [אפשר למחוק את הרווחים באמצעות פונקיית‬
‫החיפוש‪/‬החלפה]‪.‬‬
‫‪ .2‬בטקסט מתורגם‪ ,‬יש לציין את מקור התרגום (רשמי‪/‬עצמי)‪.‬‬
‫הערות כלליות‪:‬‬
‫‪ .1‬דחיית הנימוק הראשון לאימוץ מודל התחולה הישירה‬
‫אחד הטעמים האפשריים לאימוץ מודל התחולה הישירה הוא שהכוח הנצבר בידי גופים פרטיים הופך‬
‫גופים אלה לדומים בהיקף השפעתם למדינה‪ .‬במאמר טעם זה נדחה בין השאר משום שתחולה ישירה לא‬
‫תחזק את הצד החלש‪ ,‬מאחר שגם הצד החזק יהנה מזכות חוקתית זהה (למשל‪Acknowledging the " :‬‬
‫‪horizontal effect will not strengthen the weaker party, for on the other side of the‬‬
‫‪.)"equation will stand a stronger individual with an identical constitutional right‬‬
‫ואולם‪ ,‬מן הטקסט לא לגמרי ברור‪ ,‬האם העובדה ששני הצדדים מחזיקים בזכות בעלת היקף זהה משפיעה‬
‫בהכרח גם על תוצאת האיזון בין שתי זכויות אלה‪ .‬לכאורה‪ ,‬גם אם האינטרס של הצד החזק מוגן על ידי‬
‫זכות חוקתית‪ ,‬מבחני המידתיות (למשל‪ ,‬הנזק‪/‬תועלת שייגרמו לצד החלש מול הנזק‪/‬תועלת שייגרמו לצד‬
‫החזק) אמורים להעניק לצד החלש הגנה טובה מספיק כדי לאיין את היעדר המאזן בין הצדדים‪.‬‬
‫(ייתכן וחקיקה אכן מספיקה כדי לפתור מצבים אלה מבלי להידרש לשיח הזכויות‪ ,‬אך נראה שנימוק יחסי‬
‫הכוחות בין הצדדים מובא כנימוק נפרד שעומד בפני עצמו)‪.‬‬
‫הצעה ‪ :‬אולי יש מקום לפרט מדוע העובדה שגם הצד החזק יהנה מזכות חוקתית לא יוביל בכל זאת להגנה‬
‫טובה יותר על הצד החלש לאחר האיזון בין הזכויות‪.‬‬
‫‪ .2‬ההבדל הפרקטי בין תחולה ישירה לתחולה עקיפה‬
‫המאמר מפרט בפרק המסקנה (פרק ‪ )5‬את ההבדלים התיאורטיים בין מודל התחולה הישירה לבין מודל‬
‫התחולה העקיפה ומוסיף שהם לא תמיד יובילו לאותה תוצאה‪.‬‬
‫‪40‬‬
‫ואולם‪ ,‬בטקסט לא מובאות דומגאות ספציפיות (בפסיקה הקיימת או אף כדוגמה דמיונית) שיפרטו את‬
‫הנסיבות בהן צפוי להיות הבדל בתוצאה אליה יובילו שני המודלים‪.‬‬
‫הצעה‪ :‬אולי יש מקום להציג בפרק ‪ ,5‬בקצרה‪ ,‬דוגמה פרטנית שתבהיר את ההבדל בין המודלים גם‬
‫במבחן התוצאה‪.‬‬
‫‪41‬‬