Horizontal Rights
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Horizontal Rights
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Author : Gautam Bhatia
language : en
Publisher: Bloomsbury Publishing
Release Date : 2023-08-24
Horizontal Rights written by Gautam Bhatia and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-08-24 with Law categories.
This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.
The Horizontal Effect Of Fundamental Rights In The European Union
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Author : Eleni Frantziou
language : en
Publisher: Oxford University Press
Release Date : 2019-01-31
The Horizontal Effect Of Fundamental Rights In The European Union written by Eleni Frantziou and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-01-31 with Law categories.
This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.
Fundamental Rights Challenges
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Author : Cristina Izquierdo-Sans
language : en
Publisher: Springer Nature
Release Date : 2021-06-17
Fundamental Rights Challenges written by Cristina Izquierdo-Sans and has been published by Springer Nature this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-06-17 with Law categories.
This book presents a comprehensive review of fundamental rights issues that are currently in the spotlight. The first part explores why the question of whether or not fundamental rights have horizontal effect is a topic of endless debate. The second part focuses on human rights and the rule of law. It begins by arguing that the hitherto valid model of the rule of law is now outdated, and then goes on to outline the importance of the judicial dimension in countering threats to the independence of the judiciary. Lastly, the third part addresses a classic issue in the field of human rights: states’ margin of appreciation, highlighting two aspects: (i) the elements used by the ECJ to determine the scope of the margin of appreciation, which varies depending on the subject matter, the nature of the right in question, as well as the severity and the purpose of the interference; and (ii) the margin of appreciation enjoyed by national courts when interpreting the law. Exploring current issues concerning a topic of eternal interest, the book will appeal to scholars and practitioners alike. Written by formidable intellectual talents, committed to the study of fundamental rights, it rigorously analyses the most recent judgments of both the ECJ and the ECHR.
The Horizontal Effect Revolution And The Question Of Sovereignty
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Author : Johan van der Walt
language : en
Publisher: Walter de Gruyter GmbH & Co KG
Release Date : 2014-08-25
The Horizontal Effect Revolution And The Question Of Sovereignty written by Johan van der Walt and has been published by Walter de Gruyter GmbH & Co KG this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-08-25 with Law categories.
That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the "horizontal" effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts "established" boundaries between Member State and Union competences in question. This book takes issue with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate on Drittwirkung that horizontal effect cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to horizontal effect.
The Horizontal Effect Of Fundamental Rights In The European Union
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Author : Eleni Frantziou
language : en
Publisher: Oxford Studies in European Law
Release Date : 2019
The Horizontal Effect Of Fundamental Rights In The European Union written by Eleni Frantziou and has been published by Oxford Studies in European Law this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019 with Law categories.
This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.
Horizontal Application Of Fundamental Rights In India
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Author : Abhi Nandan Malik
language : en
Publisher:
Release Date : 2008
Horizontal Application Of Fundamental Rights In India written by Abhi Nandan Malik and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2008 with Civil rights categories.
This paper is concerned with the horizontal application of constitutional guarantees, that is, application of constitutional guarantees to private law. It outlines and analyses the approaches taken in India, Germany, Canada, United States and South Africa and argues against approaches to horizontalisation that disregard the public/private divide. The argument is based on zones of private autonomy and the distinct nature of the practice of private law; arguing that the practice itself is categorically distinct from that of public law and operates according to its own rules which are necessary for the practice to exist. Accordingly, it argues that constitutional values may help develop private law; however, the development must be in accordance with the nature of the practice. Use is made of H.L.A. Hart's criticism of Bentham's imperative theory of law to distinguish between private action and State action; and of Professor Ernest J. Weinrib's work to describe the essential nature of private law practices.
Horizontal Effect Of Fundamental Rights In Eu Law
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Author : Sonya Walkila
language : en
Publisher:
Release Date : 2016
Horizontal Effect Of Fundamental Rights In Eu Law written by Sonya Walkila and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016 with Charter of Fundamental Rights of the European Union categories.
The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the ‘primacy, unity and effectiveness of European Union law’. This study suggests it is feasible to consider the horizontal effect of fundamental rights in the context of EU law. However, because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger.
Do The Provisions Of The Eucfr Produce A Horizontal Effect
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Author : Miriam Rehbein
language : en
Publisher: GRIN Verlag
Release Date : 2016-04-15
Do The Provisions Of The Eucfr Produce A Horizontal Effect written by Miriam Rehbein and has been published by GRIN Verlag this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-04-15 with Law categories.
Essay from the year 2015 in the subject Law - European and International Law, Intellectual Properties, Maastricht University (Faculty of Law), course: EU Law Foundations, language: English, abstract: This paper deals with one of the most controversial issues of recent years; the horizontal application of EU fundamental rights. The growing importance of fundamental rights within the European Integration becomes especially noticeable in their increasing textualization. In 1969 the European Court of Justice in Cases showed for the first time sensitivity for Fundamental Rights in the Stauder-Case. One of the most controversial issues of recent years is the horizontal application of EU fun-damental rights. It is questionable whether fundamental rights can have an impact on private law relationships and more precisely, to what extent they are directly applicable in relations between private individuals. This topic is not just of theoretical interest, but also matters in practice. If there is no European or domestic legislation implementing fundamental rights, individuals may have problems to enforce their rights in private relationships unless those rights are directly applicable.
Horizontal Rights
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Author : Gautam Bhatia
language : en
Publisher: Bloomsbury Publishing
Release Date : 2023-08-24
Horizontal Rights written by Gautam Bhatia and has been published by Bloomsbury Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2023-08-24 with Law categories.
This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.
Extending Rights Reach
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Author : Jud Mathews
language : en
Publisher: Oxford University Press
Release Date : 2018-03-13
Extending Rights Reach written by Jud Mathews and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-03-13 with Law categories.
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.