Where there is dual sovereignty or national law is subordinated to the law of a union of nations, it makes sense to speak of vertical and horizontal effects whereby compliance by the State or National courts with the directions of the superior law making body alters relation between individuals and the state (vertical effect) and even between private individuals (horizontal effect). Such notions have no application to countries like India which are unitary, fully sovereign, and where the Bench has wide latitude.
America has always rejected horizontal effect and it appears England too is backing away from it. This does not mean that the common law or ordinary statute law can't create offences applicable to the interaction of citizens. The only question was whether actions of a superior law making body- e.g. Brussels for EU members- would oblige national courts to create new classes of offences or other legal remedies.
There are some silly professors- like Van der Walt in Luxembourg- who think a truly sovereign state would do all sorts of stupid shite for stupid reasons they pulled out of their virtue signalling arses. Thus, it your Government is not actively providing Senior Citizens with training in sodomy then it is failing in its fundamental duty to catalyse the process of sexual and gender self-discovery amongst a group of people who may be physically fragile and have diminished mental capacity. Moreover they may have some bigoted objection to sodomy. Thus, a truly sovereign state, concerned with promoting radical plurality which Hannah's Aunt defined as the most vital condition of political life, would be patiently and with uttermost resolve, devoting more and more resources to persuading elderly folk to lube up and bend over. A State where this is not occurring isn't actually a sovereign State at all. However, this does not automatically mean it is the neighbour's cat. It could be a pigeon or the Fascist ghost of a whimsical fart.
Sadly, to be sovereign means to issue commands- and positive law is a command- secure in the knowledge that you will be obeyed. This means 'incentive compatibility' or the ability to prevent 'exit'. One further point is that 'Shapley values' will determine unequal outcomes- which is what Robert Aumann showed was happening in Talmudic legal formulae for dividing inheritances or distributing funds recovered from a bankrupt. Van der Walt, a stupid Boer bratwurst, speaks of 'Sacrifice' when the relevant solution concept has been given by Shapley- a smart guy who won a Nobel. The fact is Apartheid was about giving Whites a high standard of living and trying to turn the Blacks into 'guest workers' whose real domicile is some 'Bantustan' to which they send what little they can save from their miserable wages. The reason Apartheid collapsed was because it was too costly to defend it militarily and, any way, once the Cubans left, America was pulling the plug. Walt thinks a ‘culture of justification is needed in which both public and private legal subjects are constantly required to account for such losses in ways that make clear that those who suffer them are not locked out from society as a partnership of equals.' But this 'justification' is simply based on Shapley values. Essentially, the more elastic factor gets more as does the one which poses a 'hold out' problem or which has a higher threat point. Still, there can be dramatic saltations. Those currently extracting a lot of rent may suddenly find themselves paupers as supply becomes elastic.
What of the notion that true sovereignty means constantly being commanded to do stupid shit- e.g. provide training in Sodomy to Senior Citizens? This is like the notion that to truly be a surgeon means permitting your patients to operate on you. Similarly, a Judge who sentences criminals to jail but who refuses to obey their judgment that he should stick his fucking head up his arse or die trying, is violating a fundamental 'horizontal' right. John Maynard Smith showed that 'uncorrelated asymmetries' -e.g. who owns what- become the basis of eusocial 'bourgeois strategies'. But being bougie is bad- right? Would it not be better to make mutuality the basis of all social interaction? Thus, if Mummy gave birth to you, you should try to stuff her up your fanny so as to give birth to her.
The problem with the view that a true sovereign is one who is constantly being commanded to do all sorts of stupid shit is that such a sovereign will lose the ability to command. People will feel it is a puppet. Why be the puppet of a puppet? Either you cut the strings controlling the puppet master or you cut your own strings. No doubt, some cretins think that if the puppet master is a true puppet master he will himself be the puppet of God or some virtue signalling ideology and this will be welcomed by the people. But this is a 'true Scotsman' fallacy or rather it is just wishful thinking. Gandhi might say 'we must be loyal to the Viceroy if he rules in a truly British fashion. But, he doesn't. He is the puppet of Westminster, which is a brothel and not truly British at all. Thus to be truly British we must do satyagraha'. The problem with this view is that though the habit of forming an orderly queue is indeed truly British, still quietly queuing up to get hit on the head and then carted off to jail on a regular basis is simply silly. It meant that Britain could impose unilateral solutions on India which, quite naturally, gave then various benefits while imposing costs on the divided and squabbling Indians.
Equally, Lenin could say, 'We Bolsheviks, ruling from the Kremlin, are not imposing our sovereign will. Actually, true sovereignty has been distributed among various autonomous Soviets. It is a coincidence that the Soviets choose to fuck over their own constitutive populations as if in obedience to the whims of the crazy psychopaths in the Politburo'.
It is easy to say that true sovereignty or true religion or true Liberalism or true enlightened self-interest will always lead to the outcome you pretend to want. In this case, there is some active mischief, mendacity or type of madness which is perverting everything. This entitles you to rant and rave in a paranoid manner. How is it that rich people are wiping their own bums but not assiduously wiping the bums of poor people? Is it not because we, as a country, are not truly sovereign? We are merely the slaves of Neo-Liberalism. Also how come Men still have penises? Penises cause RAPE! The Government would have banned penises long ago if it hadn't been brainwashed by the Patriarchy.
The truth about a sovereign entity is that it has to do what it needs to do to maintain 'conatus'- i.e. remain sovereign. Invasion or insurrection puts an end to sovereignty while lack of resources severely limits its scope. Still, various nutters can pretend that States have magical powers because a Sovereign is a King- right?- and Kings have magical powers because they have Wizards named Merlin who work for them. Also, they have fire breathing dragons like in Game of Thrones. This means that if we talk the right sort of nonsense then the dragons will appear in the Sky and Sovereignty will become very nice and everybody will share in that sovereignty and people who didn't go to Grad Skool but who made lots of money as lawyers or bankers or whatever won't make fun of nutters like Gautam Bhatia who in his D.Phil thesis, titled 'Horizontal Rights- an Institutional Approach', ignores the fact that all Constitutions, written or unwritten, recognize and enforce 'horizontal rights' (e.g. Good Samaritan laws which create a duty for a private party to help another such under certain circumstances- or third party effects (e.g. externalities)- because most laws and legal disputes occur between two private parties in a manner such that some third party may be adversely affected. So too may the doctrine of 'sufficient interest', such as that of Lord Denning, not to mention 'the Public interest' and thus the State too may get involved by suing itself. However, as a matter of legal procedure, no party to a suit has a priori precedence or privilege provided there is sufficient locus standi. Indeed, justiciability assumes that all parties approaching the bench are equal before the fact though it may turn out that one has a superior right or immunity or another lacks locus standi. In India, however, the Bench has a capacious doctrine of 'inherent power' and so locus standi does not matter. Sadly, the showboating of Bhagwati turned the Bench into a Circus where activists performed their antics and a capricious ipse dixit style of judgment gained currency. But, this meant more corruption and more virtue signalling and more histrionics but no regard whatsoever to the public interest which has to do with incentive compatibility of existing mechanisms. Corruptissima re publica plurimae leges. The more there are laws, the more there is corruption. This is all the more true of judge made law because the Judiciary is unconcerned with fiscal policy. It can kill the golden goose while leaving the Legislature holding the bag of national bankruptcy.
Consider 'absolute liability' (which is actually merely strict), which Bhagwati brought in for M.C Mehta with an eye on affecting the damages awarded in the Bhopal gas leak case. What has been its effect? Nothing good. Those with deep pockets now have very much deeper pockets though their assets have been offshored and any loss will fall on nationalized banks. Meanwhile, the air for everybody in Delhi is slowly turning into a poison gas.
Bhatia writes- 'This Thesis develops and defends an approach to horizontal rights application, called the ‘institutional approach’.
Which already exists everywhere whether or not there is a written Constitution provided there is something like strict liability and a crazy CJI who likes playing to the gallery. The problem is that the thing won't be enforceable or will -----------------------------------------------have extremely perverse effects.
Bhatia believes that 'constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties'. This is not the case. A Sovereign can invoke immunity. To take an example, slavery may be unconstitutional and a person keeping slaves- as 'Comrade Bala' of Tooting has been convicted of doing- can be prosecuted on the basis of a violation of constitutional right. However, a diplomat who actually has a slave in his house in London may have immunity deriving from the fact that he represents a sovereign power. Bhatia has misinterpreted certain American 'State Action' cases which reflect ideographic aspects of American society at that time. However, it should be remembered, some Presidents- Jackson, Lincoln even FDR- have either ignored rulings of the Bench or threatened to pack the Court. This means that if you take a historical or institutional approach, then you can't also subscribe to a 'pure theory' or 'legal science' type of analysis.
The institutional approach argues that constitutional rights ought to be applied between private parties,
they already are. The trouble is that 'neo-institutional' or highly normative approaches may provoke a reaction and norms of an opposite type might prevail on the Bench.
in situations where: (a)there exists an ‘institution’(social, economic, or cultural), characterised by its pervasiveness and difficulty of exit (e.g., the labour market, or the family);
rights exist whether or not there is an institution, though higher rights may accrue to specific institutions- e.g. the institution of marriage. A 'Common Law marriage' may be very easy to exit, but this does not mean no legal rights and obligations arise under it. However, what would otherwise be bigamy (which is illegal in many jurisdictions) may not attract punishment.
It does not matter whether there is an institutional or other intermediary between an agent and a principal or an employee and an employer. There will still be some legal rights and obligations. Moreover, a third party may have locus standi on the basis of receiving some cost or benefit 'externality'. At any rate, this is the Common Law position. In any case, the Indian Bench has an 'inherent power' doctrine such that it can inquire into anything and take any sort of suo moto action.
Difficulty of exit may relate to notions of 'conscionability' or 'control'. Where there is significant asymmetry there may be equitable or other legal remedies.
(b) the institution creates and sustains a difference of power between the private parties;
in which case something like 'culpa levis' may arise or 'conscionability' or 'control' have salience. But this has always existed.
and (c) this difference in power enables one of the parties to violate the rights of the other.
Bhatia thinks heterosexual marriage is an institution in which women are forced to perform 'begar' (unpaid labour). Marriage is unconstitutional. Sadly, if India is stupid enough to take Bhatia's 'institutional approach', everybody will simply convert to Islam and thus escape the big financial penalty married men would face. You don't mess with Muslim personal law if you want to keep your head on your shoulders.
Anybody can violate the rights of anybody else. The question is whether some can do so with impunity and whether this is per se illegal or gives rise to a tort or admits of an equitable or 'due process' or other similar remedy.
Is Bhatia going to give a more comprehensive Hohfeldian type analysis of 'Horizontal rights'? No. The man is a fool. He thinks Constitutional rights have to do with stuff Supreme Courts concern themselves with. He thinks the US has concentrated on 'Vertical Rights'- not realizing that America has dual sovereignty and thus the US constitutional law has a lot to do with the respective limits of State and Federal law. India, however, has a unitary Constitution, a doctrine of autochthony, Directive Principles, and, in recent decades, an independent, self-selecting, activist Bench with no real 'doctrine of political question'. However, Judges have shat the Bench and so the nuisance posed by crazy or stupid Judges has been curbed. Essentially, they are ignored if they do stupid shit. In any case, they keep overruling themselves and thus merely add a layer of arbitrary delay to a wholly rotten system.
Bhatia says- ' the vertical’ character of bills of rights (applicable against the State), along with the public/private divide that is constituted by, and constitutive of, this character, remains the default mode of thinking, across jurisdictions'.
What he means is that there is a presumption that the State will be held to stricter account than private parties by constitutional laws. This may be true in certain places at certain times. But under exigent circumstances, the State can assert its sovereign immunity even against judicial review. Judges would be wise not to push their luck too far because once they start being ignored there is a cascading effect such that they may become wholly ineffective.
Bhatia seems to think that rights violations arise by reason of asymmetry of power. This is not the case. Poor and weak people may be compelled to violate the rights of the rich and the powerful who may prefer a legal remedy rather than just hiring goons to settle the matter.
Since Hohfeld, we understand rights as linked to remedies under a bond of law. Actions of the State are actions of the Executive and if no remedy is available to the Judiciary, the Legislature is welcome to provide one. The historic motivation of Bills of Rights in Anglophone jurisdictions is well known. But this does not mean that Common Law or Equitable remedies are not Constitutional. Indeed, in the case of India, where there is a lot of traditional law, the doctrine of autochthony was explicitly adopted to clarify that all current legal remedies, whatsoever their origin, are constitutional remedies and deemed to be native to the soil of the country. However, there are questions- not to mention pragmatic or prudential considerations- as to how far the Bench, or even the Legislature, can go. It is one thing to pass a law or issue a judgment which may be dismissed as mere virtue signalling. It is another to seek to enforce it. No doubt, a Government may choose a judicial excuse to do nothing. But, equally, it can ignore the judiciary to do what it needs to preserve the State in the face of economic or military or other setbacks.
Bhatia's batty thesis rests on three misconceptions
I identify three conceptual assumptions that I believe are integral to this approach to constitutionalism (for the purposes of this thesis, let us call it the 'default vertical approach’, or default verticality’).
These concepts exists everywhere and at all times. They are (1) Sovereignty- which is the source of positive law but also a source of immunity from its operation. (2) Freedom- which is a set of Hohfeldian immunities for whose violation a justiciable remedy may be available. (3) individual responsibility- i.e. Hohfeldian obligations. If these are not incentive compatible, the underlying bond of law collapses sooner or later.
Bhatia, being as stupid as shit, thinks America invented all these things. He doesn't get that the reason Americans speak English is the same reason he himself speaks English- viz. America and India were possessions of the Crown. The same legal tradition developed in two very different ways in these widely separated countries. In America, different ex-colonies came together to form a Union but with 'dual sovereignty' which may have included the right to secede. In India, directly ruled States as well as British protected Princely territories came together on a unitary basis. No State or territory retained 'a shred of sovereignty'.
Bhatia & Co think that by pretending India imitated American Constitutional Law it follows that India is just as rich as America and thus any crazy shit 'Critical Legal Studies' nutters demand from ultra-rich Washington can also be demanded from poor-as-shit New Delhi.
These assumptions shall be studied in the context of the constitutional jurisprudence of the United States of America and the scholarly debates around it. There are two reasons for (largely)limiting the enquiry in this opening chapter to theUS.
It is foolish to mention a country with 'dual sovereignty' which, for that reason, will have a large body of Constitutional law which is wholly irrelevant for countries like India which are unitary. Like the US, India was a colony but traditional Indian laws of various types were maintained by British judges in British administered areas. The Indian Constitution evolved out of reforms unilaterally imposed by the Brits (because Indians could not agree on a Constitution) till after Independence when the Indian Constitution was drafted. But, 'US influence' was of a negative type. India tried to close the door to 'due process' activism believing it to be a tool of the Rich and Reactionary. Similarly, India chose to be unitary though, previously, there was dual sovereignty in the Princely States. Also, India's First Amendment went in the opposite direction to America's. Finally, the fundamental right to property was abolished and India was declared a Socialist Republic.
First, the default vertical approach – as legal doctrine – had its origins in US constitutional jurisprudence. It has been subsequently exported across the globe,
not to India. After Brexit, Ireland might be the only other English speaking country where anything similar might apply.
but remains closely associated with the United States through the 'State action doctrine’ (i.e., a doctrine that, in a certain set of narrow circumstances, treats the actions of private parties as those of the State; this will be discussed in more detail in Chapter Two).
This doctrine is irrelevant for India or UK . It is about 'Parker immunity' from Federal anti-trust action and arises out of sovereignty of the States composing the Union. India has no such thing. There is no dual sovereignty.
It is a fact that if the State of Maryland wants to have Public Health System then, because it has a degree of sovereignty, it can do so. It can give the contract for providing Hospitals to a particular Corporation. The fact that such a system would gain a very big share of the market can't be the basis of anti-trust action because, clearly, the State of Maryland has some sovereign immunity. It isn't a money grubbing Corporation or entrepreneur.
In America there is a 'Sovereign Citizens Movement'. The idea is that you need not pay taxes or obey laws relating to distilling alcohol, hoarding automatic weapons, etc, because you yourself are just as sovereign as the State in which you reside. Is this the kind of craziness batty Bhatia is talking about? No. He just doesn't understand Parker immunity- that's all.
Popularly known as the 'State action doctrine’, this approach ‘attributes’ the acts of a non-State body to the State, by virtue of a formal or real connection that exists between the two.
The State is sovereign and its immunity extends to its agents. What's wrong with that? You can't sue a judge for sending you to jail. He gains immunity from the Sovereign he serves.
I argue that this approach – which takes different forms in different jurisdictions – continues to treat the concept of unitary, centralised sovereignty
WHICH THE US DOES NOT HAVE! Dual sovereignty is dual, not 'unitary'.
as uniquely salient when it comes to the application of bills of rights.
If the Sovereign is the remedy provider only the Sovereign has salience. There is no point having a bill of rights where the remedy is supplied by the neighbour's cat. This is because cats say miaow and run away instead of doing anything helpful.
India has had English judges and English lawyers who trained Indian judges and Indian lawyers for centuries. After Independence, it gave more power to the Legislature and thus the Executive than America has done. It is not the case that the thrust of British or Indian jurisprudence has been to limit the power of the State. The US went in the direction of Pym and Hampden. England and India went in the direction of Stafford.
Batty Bhatia believes that the Indian Constitution is unusual in that it has 'horizontal rights'. What he doesn't get is that if the State is the remedy provider, then the right is still 'vertical'. Suppose India had a Bill of Rights framed in terms of caste or clan associations and that the Legislature itself was composed of such entities. Then there would be multiple sovereignty. But nothing of the sort obtains.
The Bill of Rights also has four provisions that apply inter se between private parties. Article 15(2)(a) of the Constitution stipulates that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment.’
But the remedy depends on an action of the judiciary which is an organ of the Sovereign State. Why does the Constitution make this provision? The answer is that previous customary law and some case law had considered such discrimination to be legal.
Article 17 states that "Untouchability "is abolished and its practice in any form is forbidden.’
Just as rape and murder was forbidden. The reason this appears in the Constitution is because the practice had previously been condoned. Don't forget the Constitution was drafted by a Legislative body.
Article 23(1) provides that traffic in human beings and begar and other similar forms of forced labour are prohibited.’ And Article 24 prohibits child labour in hazardous industries.
The Assembly was incorporating its own laws into the Constitution. This made the document rather lengthy. Burma got out its Constitution and had its first elections under universal suffrage more quickly than India.
There is a family resemblance between these provisions of the Indian Constitution, and the Thirteenth Amendment of the US Constitution.
No. There is a 'family resemblance' between Queen Victoria's declaration regarding India and Tzar Nicholas's emancipation of the serfs and the 13th Amendment because they all occurred around the same time. But there is no genealogical relationship with stuff that happened after the Second World War. Batty Bhatia may not know this but the Brits abolished slavery in territory they controlled some thirty years before the Yanks got round to doing it. India was ahead of America in this respect.
Beyond that, however, what is immediately noticeable about these provisions is their specificity.
But this is a feature of the entire Constitution! Even the Directive Principles are specific. Cows are to be protected. Buffaloes can go fuck themselves. Alcohol should be prohibited. You are welcome to smoke like a chimney.
Unlike departures from the vertical model that are framed in the language of principle –
everything in law is framed in the language of principle but has a specific application
such as the 'public function test’ or 'indirect horizontality’
these are both 'vertical'. The public function principle picks out only those actions done by agents of the Government even if the relationship is indirect- e.g. a Housing Association receiving funds from the Government to provide certain types of housing to a certain class of people. 'Indirect horizontality' is about holding States responsible for the actions of non-State actors. But States may assert sovereign immunity. Still, in the EU context, there was some notion that Brussels would be able to fuck up Orban and so forth through budgetary sanctions or something of that sort. Sadly, Brexit- and now Ukraine- has put paid to this pipe dream.
– leaving Courts to provide concrete content to the stated principle on a case-bycase basis
Indeed, Courts create tests of this type. However, Legislative Action can always kick the Courts in the goolies. Better yet, they can simply be ignored.
– the provisions of the Indian Constitution refer to a very categorical set of acts, and make no reference whatsoever to the State.
This stupid cunt doesn't get that the Constitution was framed by a Legislative Assembly which enjoyed near sovereign powers. This was a document by the State for the State by which the State became fully sovereign. Nothing in the Constitution does not refer to the State though, obviously, a promise or a threat to do something may not actually be fulfilled.
This suggests that at the time of the framing of the Indian Constitution, there existed a set of known injustices that were inflicted by non-State parties, and which were salient enough to directly proscribe under the Constitution, instead of leaving it up to Parliament.
This cretin still doesn't get that the Constituent Assembly was India's Parliament. Moreover, the precedent was the 1935 Act which was very very fucking long.
A clue to the provenance of the horizontal rights provisions in the Indian Constitution
there are none. The State was making a statement similar to Queen Victoria's Declaration when India came directly under the Crown.
is available in legal history.
No. Political history.
Commentators have pointed out how a distinctive feature of pre-colonial governance in India was the idea of 'layered sovereignty’: a significant part of what we consider 'lawmaking’ today was the domain of 'self-regulating communities’, which were independent with respect to their internal organization.’
There was a distinction between British subjects and British protected subjects. Communities are welcome to regulate themselves under any liberal dispensation. This does not mean they have sovereign immunity.
Crucially, from its very beginning, colonial rule was characterised by a (tactical) policy of leaving this structure largely intact.
IN which case any statement of policy was merely 'tactical' and thus not important in any way.
Batty Bhatia thinks
'law-making power’ (including in the Indian case, the rules governing marriage, divorce, tenancy and inheritance, to name a few) was habitually exercised by non-State parties (albeit, admittedly, with the sufferance of the colonial sovereign’).
This is not the case. If a father decides to disinherit his son and chuck him out of the house, the father is neither a law-maker nor a sovereign even if no Court of Law or pressure of public opinion can reverse this outcome. This is equally true of a guild, or a caste association or a tribe. Princes were sovereigns and did make laws, though the Crown was paramount. But making a law is like giving a command. If no one obeys it, you have wasted your time.
Consequently, the unitary conception of sovereignty that lies at the heart of the default-vertical approach did not – arguably – possess the kind of normative salience during the evolution of rights-thinking in colonial India.
Nonsense! There was no great change save in that Princes were pensioned off, their territories amalgamated with Directly ruled areas and their function replaced by Chief Ministers enjoying the confidence of State Legislatures.
It is therefore unsurprising that as the language of rights developed and evolved in colonial India, it took two distinct forms: the familiar language of civil and political rights against despotic foreign rule, but also a vocabulary of rights available to individuals against community-based action, which had no State involvement of any kind.
This is like my right to shit on Bhatia. The State won't enforce it. But it will enforce Bhatia's right not to be shat upon by anybody. His vertical right is effective. My 'horizontal right' does not exist. I suppose one could say that people beating each other in the streets are trying to enforce horizontal rights. We prefer to pay money to a Stationary Bandit Sovereign to suppress anarchy of that type.
Batty Bhatia's stupidity is licensed by an availability cascade originating from a Professor of the Philosophy of Law-
In The Horizontal Effect Revolution and the Question of Sovereignty, Johan van der Walt develops an account of horizontality that is founded on a root-and-branch critique of the assumptions underlying the default vertical approach.
It is based on the 'true Scotsman fallacy'. True Sovereignty, this nutter thinks, will be only such as he pretends to want.
To begin with, recall the third assumption underlying default verticality, according to which individuals in the 'private sphere’ face each other on terms of abstract equality (i.e., within the same 'horizontal plane’).
There is no such assumption in law. That's why some contracts are unconscionable and the party with more power in a relationship may have a higher duty of care. However the law simply isn't enforced where it would be costly or counter-productive to do so. Thus prostitution and drugs and gambling and all sorts of other things may be illegal and yet be highly visible in their flourishing.
They are therefore deemed equally responsible for shaping the terms of their relationship, with the rights framework playing no supervisory or regulatory role.
But neither Roman Law nor the Common Law tradition makes this silly assumption.
Van der Walt explicitly rejects this assumption, noting that the public/private divide – and, by extension, default verticality – incorrectly 'look[s] upon public law relations as vertical power relations (between superiors and inferiors)
This is not true. A party to an action may have superior Hohfeldian rights and immunities- e.g sovereign immunity or immunity from anti-trust federal law by reason of 'State Action'- e.g. a contractor providing a service on behalf of an American State. However, there will be occasions where an individual has a superior immunity- e.g 'right to privacy' in Lawerence v Texas.
and upon private law relations as horizontal relations (between equals).’
Texas was the equal, before the fact, to Lawrence. But it turned out the private agent had a superior immunity.
Once it is understood, however, that private law relations are not 'horizontal’ in this sense,
in other words, one party may be wealthier or else may have a penis. Penises cause RAPE! Ban them immediately.
it follows that the application of the rights framework to such relations is 'a move towards the horizontalisation or re-horizontalisation of private law relationships, and not as a move towards applying constitutional demands to horizontal relations’
The constitution demands that we ban penises because penises cause RAPE! In a Court case where one party has a penis, the penis must be immediately removed BEFORE any horizontalization or re-horizontalization can occur- more particularly if the disputants got bored with the court proceedings and got busy horizontally bonking.
(because these relations were never truly horizontal in the first place).
Not till all penises are banned can horizontality avoid ending in bonking. Next step, ban fists. They cause FISTING!
In other words, the default vertical approach asks: in what circumstances do we apply the rights framework – originally designed for the vertical public law relationship between State and individual
Nonsense! As the Bible shows, first there were Judges and then there were Kings. Typical 'rights' claims' entertained in the pre-monarchical period, had to do with guys suing their employers for not letting them take away the amount of corn or the number of sheep they were entitled to in return for their labour.
In any case, writs like 'habeas corpus' or the amparo remedy can be used against non-State actors- e.g. psychiatric hospitals. It is a different matter that organs of the State may be called on to punish non-compliance. But, private parties may do so and retain a defence in law provided 'proportionality' is maintained.
– to horizontal private relationships? Van der Walt, on the other hand, asks: 'given that private relationships were never horizontal to start with, in which circumstances should we apply the rights framework in order to “horizontalise” them?’
The Court does not make any assumptions regarding those who approach it or who are required to attend it. They are equal until some specific Hohfeldian incident is discerned which means one party has a superior entitlement or immunity.
Default verticality's assumption that private relationships are horizontal is accomplished – Van der Walt points out – through the conscious 'erasure of baseline questions’ (that is, questions relating to the distribution of economic and social power) from the legal enquiry.
Nonsense! The parties to a suit are considered equal till facts that prove otherwise are established. If one party has a lot of power, 'unconscionability' is more likely to be proven. Elon Musk can't show that I threatened to bankrupt him if he didn't sell me a Tesla for the low low price of 100,000 dollars. This is because I am clearly much poorer and much less important than he is.
This speaks to the second assumption underlying default verticality – that of abstract freedom – according to which freedom is what remains after constraints have been placed upon the State's power to act.
Very true. The fucking Capitalists claim us proles have 'freedom'. Yet when I jumped out of the window and tried to fly like a bird, Newton's Law of Gravity caused me to go splat on the sidewalk. Did you know Newton was 'Master of the Mint'- i.e. a flunkey of Financial Capitalism? Also, it was the Rothschild's who invented Death by bribing the Lord Chancellor to introduce a 'Death Penalty'. Previously, everybody could fly and was immortal.
It is only after those baseline questions have been shorn off that we get the abstract legal subject, whose freedom is protected through the application of (vertical) rights against the State;
No. Justice is simply a Service industry. You protect your own freedom or others protect it for you in different ways. Sometimes, it is worth going to Court and getting a judgment in your favour. But, a lot of the time, the game is not worth the candle.
and it is through an equal protection of such de-contextualised freedom that we construct the private domain as a set of 'horizontal’ (equal) relationships between equal subjects.
But you are as stupid as shit. Who cares what you construct?
A combination of these two assumptions – abstract freedom and individual responsibility – yields a situation where actually existing inequalities and hierarchies within the 'private’ domain are deemed normatively irrelevant for the application of the rights framework.
This is also the case when we walk down the road and avoid bumping into people even if some have penises- which cause RAPE!- and thus don't deserve any type of consideration.
Thus, for Van der Walt, what horizontality is really about is the restriction and even the undoing of private hierarchies. It concerns the constitutionally required levelling and horizontalisation of these hierarchies.’
Which is why he bumps into people who have penises and tries to cut those penises off so as to establish genuine horizontality with out which no State can claim to be truly sovereign. If he tried that shit back in South Africa he'd have been kicked to death. Still this is one Boer who knows which side of his bread is buttered. If you are going to virtue signal, do it in Europe. Don't do it in a place where you might be raped to death because of the colour of your skin.
Does batty Bhatia's hero actually know any law? No. Consider the following-
As an example, Van der Walt takes the famous instance of Shelley v Kraemer
which said it was fine for private parties to be as racist as fuck, but no 'State Action' could enforce racially discriminatory covenants or contracts because of the 'Equal Protection Clause'.
and the constitutional validity of racially restrictive covenants in a society that is itself scarred by racial domination and subjugation.
The covenant was valid enough for any private purpose. In the Shelley case, an action against the White who sold the house to the African American family may prevented the sale or penalized him for it. The fact that Society is scarred by male domination doesn't mean it is legal for Walt to bump into men and then try to chop their peckers of on the basis that penises cause RAPE!
In the Shelley context, Van der Walt argues, private conduct that seeks to perpetuate wide scale racial segregation becomes “governmental.”
That was not the ratio. People were welcome to be racist or patriarchal or to hate Estate Agents. They can agree to exclude White, Vagina possessing, Estate Agents from their condo. What was not permitted was 'State action' to enforce a thing which went against the 'Equal Protection' clause.
Such private conduct can no longer claim to be private.’
No. Private racism was fine with the Bench. It was an action of State which they objected to.
Thus, the collective refusal of white property owners to sell to Black homebuyers is no longer simply a private decision about how an individual intends to dispose of their property,
Did these guys actually read the judgement? The plain fact is racist covenants in title deeds, though unenforceable post Shelley, remained legal till 1968. Still, there continue to be ways to get around this.
but rather, should be understood as a set of 'private endeavours to promote or sustain public inequality’
Sadly, a covenant designed to ensure that only members of an economically weaker race can buy property on a desirable estate may itself be per se illegal. Still, there may be ways around this.
Van der Walt does not explain what he means here by 'public inequality’,
The guy is a Boer. He means 'niggers'.
but presumably it is inequality that goes beyond the specific private relationship at issue. This is evident from the fact that Van der Walt goes on to refer to disputes between individuals that have a !social-political significance that extends beyond the relations of those directly involved.’ 305 Van der Walt draws upon Laurence Tribe's
Tribe is a high IQ guy who literally wrote the book on American Constitutional Law.
insights in his analysis of Shelley v Kraemer, which Tribe describes as the subjugation thesis: private discrimination is permitted except where it has an overall effect of confining minorities to their current disadvantaged positions in society.’
He said that is how the case should have been decided. He was wrong. Convicted paedophiles are a disadvantaged minority. They should be permitted to move in next door to Tribe's grand kids.
Private discrimination must always be permitted by a State which can have its fucking head kicked in by the people if it passes stupid laws. The point about Shelley was that White people wanted to get a better price by selling to Black or 'Mongolian' people. Economic changes drove changes in Law and Politics.
While Shelley v Kraemer and racially restrictive covenants present a straightforward example, Van der Walt still needs a final argument to complete his account: how do we identify in general those private relationships that 'thematise ... an institutional conflict’?
We just make that shit up. It makes sense to store up your own grievances so as to beat Social Justice warriors over the head with it. How can there be any horizontal equality so long as some penises are below average in size?
Van der Walt answers this question in two parts. He begins by identifying the first assumption underlying default verticality: the idea of undivided sovereignty. As long as there continues to exist 'an oppositional monopoly as far as threats to liberty are concerned’ departures from default verticality will continue to have to go through the State (whether through State action or indirect horizontality) in order to get to the private relationship at issue.
This is nonsense. There can be a Nazi as well as a Communist threat to Liberty but 'departures from default verticality' can still go through various different routes rather than rely upon the Law alone. Jews were able to use their market power to get Henry Ford to tone down his anti-Semitism. Ridicule can have a similar effect.
Van der Walt thus proposes what he calls 'différantial sovereignty’ (sic),
i.e. some Derrida type nonsense
which frames the relationship between 'social majorities and minorities’ in a society.
Society frames the relationship between different groups of people living on the same patch of land. Still, it is a fact that people with under average size dicks are a minority in society. Which 'differential sovereignty' frames our relationship to women and guys with big dicks?
This brings him to the final prong of his model: relevant 'private disputes’ to which the horizontal rights framework should apply, he argues, are those that embody conflict between social majorities and minorities (such as racially restrictive covenanting).
What about racially restrictive access to rectums? Should Walt be allowed to permit only big black dicks to fuck him in the ass? Yes. He may hold absurd views but he gets the right to choose who or what enters his anus.
Let us now look at Bhatia's views on the Indian constitution.
Let us begin with the plain text of the horizontal rights provisions of the Indian Constitution. Article 15(2) stipulates that: No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to ... access to shops, public restaurants, hotels and places of public entertainment; or ... the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
There is nothing 'horizontal' about this. Public places alone are mentioned. It remained perfectly legal to only invite people of a certain caste or religion or race into a private home or club or place or worship not in receipt of government funds.
Article 17 provides that: ‘Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'Untouchability" shall be an offence punishable in accordance with law.
Though it seldom was. There were less than 200 prosecutions in 1955 and 400 prosecutions in 1965. By 1975, there had been less than 5000 convictions in total. Tamil Nadu alone from 1971 onward contributed 1200 of those convictions.
Our discussion so far enables us to draw a few important inferences from the text itself. The first is that unlike its counterparts in South Africa, Kenya, and elsewhere, the Indian Constitution's horizontal rights provisions operate at a greater level of specificity. There is no omnibus clause that allows for the horizontal application of rights where appropriate, leaving the courts to work it out on a case-by-case basis. Rather, the Constitution delineates the specific domains where horizontality shall apply.
That domain is the public domain where the State has superior rights and private agents fewer immunities.
Secondly, two out of three provisions refer to social institutions...and thirdly, the terms used are specific to India, suggesting that it was the concrete historical experience of how certain social institutions operated that prompted the framers of the Constitution to subject them to the constraints of horizontal rights application.
There is no need for any 'suggestion'. It is obvious that an Indian legislature whose members were Indian and who were framing a Constitution for India were reflecting 'concrete historical experience'. They were seeking to ban things like untouchability and begar in precisely the same way that suttee was banned.
No 'horizontal rights application' is involved when a thing repugnant in itself- e.g. sodomy (till recently)- is banned. This is pure 'vertical', top-down', Law as Command. Under the 1955 Act untouchability became a cognizable and non-compoundable offence. Horizontal 'consent' became irrelevant. If the thing was detected an offence was established.
The Constitution could have also banned alcohol and cow-slaughter but was content to leave them as Directive Principles. However, some States adopted draconian laws in this respect.
The text, therefore, reveals certain important elements of the institutional approach:
Positive Law is Law as command. It is the opposite of either Institutionalism or neo-Institutionalism.
a focus on social practices (or, as in the case of Article 15(2), as we shall see, a set of acts representative of those practices);
Everything- including murder- could be called a social practice. The fact is, the laws on untouchability and bonded labour are like laws against murder and rape and suttee. No information need be gleaned about the social or institutional or normative background for the offence to be established. However, Indian law recognized that 'customary practice' might be a defence in law in certain specified areas and for certain specified communities.
and furthermore, specific identification of those practices, based upon a concrete historical understanding of how, in that jurisdiction, they functioned in a manner so as to facilitate or enable the violation of the rights of some individuals by other private parties.
This is precisely the opposite of the type of positive law enshrined in the Constitution which batty Bhatia has referred to.
In that context, let us now turn to the judicial interpretation of these provisions, with the following caveat: Indian constitutional jurisprudence on horizontality remains underdeveloped.
Horizontality (Drittwirkung or third party effect) as a doctrine only developed in Germany and Holland after the Indian Constitution was promulgated. Consider a case where a mentally challenged 16 year old was raped by the spouse of a person working in the asylum where she was confined. A Court decided that the girl should have filed the complaint herself thought the police let her father do it because she lacked capacity. It seems there was a gap in the law in Holland and other similar countries. But no such gap existed in India. Rape is a cognizable offence. The girl didn't have to file a complaint. Once the police determined that she had been raped (she lacked capacity to consent) the case should have proceeded. It may be that the evidence wasn't solid enough to convict. That is a different matter.
The three cases that I shall now discuss, therefore, are not reflective of a long-standing or developed judicial tradition, but rather, three specific examples of how the Indian Supreme Court has understood and articulated horizontality in its institutional sense.
India has no need for a doctrine of 'third party effect'. Moreover the Indian Bench is activist and can take suo moto notice of anything it likes. It relies on a doctrine of 'inherent power' to serve the ends of justice.
Batty Bhatia is upset that the stupid shit he has done his PhD on has zero utility for India because India's problem is not that the Court is weak but that the country is as poor as shit. Still, we understand why Bhatia and his chums are angry. The Indian Justice system might reform itself. It may cease to be a bottleneck, or choke hold, preventing rapid growth. But if India can get richer and more secure, Bhatia and his ilk will feel they have wasted their lives.
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