Law, Social Justice & Global Development
(An Electronic Law Journal)
Blixen’s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neocolonialism
Johan van der Walt
Professor of Law, Rands Afrikaans University,
This is a refereed article published on: 30 April 2003
Citation: Van der Walt, J ‘Blixen’s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neocolonialism’, 2003 (1) Law, Social Justice & Global Development Journal
This article interprets the horizontal application of fundamental rights in terms of a political resistance against the feudalisation and colonisation of political relationships. The central argument in the article is that a fundamental possessiveness over the independent existence and freedom of another person or persons constitutes the essence of the feudalisation and colonisation of politics. Feudalisation and colonisation must be understood as a privatisation of the other, a privatisation that destroys the otherness of the other and the difference between self and other. And in doing so, it destroys the essential distance between the self and other in public or political relationships.
Constitutional review must be understood in terms of the fundamental protection of the difference and otherness that underlie the dignity, liberty and equality of each individual. And it is by virtue of this protection that it can be said to resist the privatisation of political or public relationships, be this privatisation perpetrated by public or private legal subjects. When constitutional review relates to the relations between states or powers of state and subjects of the state, we refer to the vertical application of fundamental rights. When constitutional review relates to the relationships between private legal subjects, we refer to the horizontal application of fundamental rights. Horizontal application of fundamental rights is a new development in constitutional theory that plays an extremely important role in contemporary constitutional review, due to the immense power that big private legal subjects wield over people’s lives today. Big business interests are today often the major perpetrators of fundamental rights violations. As such, horizontal application plays a fundamental role in the resistance against feudal or colonial privatisations of the public referred to above. However, state action that does not promote public interest can also be seen to constitute a privatisation of political relationships. A state that acts contrary to public interest no longer acts as a public legal subject. It becomes a privatising and private legal subject. Constitutional review of state action can therefore also be understood in terms of the horizontal application of fundamental rights. Horizontal application can consequently be argued not to constitute an exception to regular constitutional review. It can be said to constitute the foundation of all constitutional review.
This article elaborates this understanding of constitutional review against the background of recent neo-colonialist attempts by both public and private legal subjects to privatise public relationships in South Africa.
Keywords: Postcolonialism, Radical Democracy, Politics of Deconstruction, Politics of Law, Political Pluralism
King Leopold II of Belgium gave quite a different meaning to Karin Blixen’s phrase ‘I had a farm in Africa’. During the time of his reign between 1865 and 1909 he possessed the whole of Belgian Congo as his private property1. No, we have to rephrase. Karin Blixen ‘had’ her farm in Kenia from 1914 to 1931. Her ownership started five years after Leopold’s ownership ended. If there is a difference to be invoked between Leopold’s and Blixen’s ‘having a farm in Africa’, it is Blixen who must be said to have given a different meaning to Leopold’s.
This article, if anything, may be said to constitute an essay on Blixen’s difference. It will go so far as to stress this difference in terms of a Derridean différance, the différance constitutive of the relationship between the host and the guest, the différance that is also at play between the colonist and the colonised. Ultimately, we shall see, this différance also involves a grave struggle between a privatising urge to possess and a public minded concern with dispossession and non-possessiveness.
The Belgian Congo was ruled by Leopold II, but also possessed by him. This unity or conflation of political power and economic power was the essence of the feudal social system2. It was also the essence of colonialism. Colonialism can be argued to have constituted an anachronistic continuation of European feudalism. It was a matter of political governance aimed at economic exploitation at a time when in Europe itself, political governance had, at least institutionally if not quite in reality, been severed from economic interests. The conflation of private and public power that characterised European feudalism came to an end with the great French revolution against feudalism. It obtained institutional status in the Napoleonic Civil Code. The Code Civil referred to a public domain that was exempted from private ownership3. At issue was a domain that belonged to everyone and therefore to no-one in particular. Claude Lefort would later articulate this everyone/no-one structure of the public domain as the paradox at the heart of constitutional democracy4.
This article will explore the role of the horizontal application of fundamental rights in maintaining the paradox at the heart of democracy and thus in resisting the feudal or neo-feudal, colonial or neo-colonial, conflation of the private and the public, the conflation of ownership and governance. ‘Vertical application’ of fundamental rights refers to the application of these rights to the vertical relation between state and subject. ‘Horizontal application’ of fundamental rights refers to the horizontal relation between private law subjects or private individuals. This is the standard understanding of these terms, an understanding that will be challenged in this article. Challenging the standard understanding of these terms is in fact crucial for invoking horizontal application of fundamental rights as a mode or method of resistance against the feudal or colonialist conflation of economic and political power as this article does.
The reasons for invoking the horizontal application in the struggle between the feudal or colonialist conflation of economic and political power can be stated in three main points:
1) We invoke the term ‘horizontal application’ whenever fundamental rights find application in disputes between private legal subjects, that is, when fundamental rights are said to bind private individuals and not only the state as the classical theory concerning the application of fundamental rights suggests. This is the standard understanding of horizontal application, an understanding that is certainly not insignificant for my argument. The conflation of economic and political power often takes place today because of the impact of huge business concerns on national politics. In other words, neo-feudal or neo-colonialist power is most often wielded today by private legal subjects. However, the understanding of horizontal application in terms of the application of fundamental rights on private legal subjects is not always accurate. The South African legal system may in fact well be the only legal system in which horizontal application can be understood in this way, given the specific articulation of the application clause in section 8(2) of the Constitution of South Africa of 1996. It can nevertheless be argued that the South African judiciary has yet to come to terms with the articulation of horizontal application in section 8(2). As is the case with the United States and Germany, the South African courts have thus far chosen to read a certain vertical relation into the horizontal application of fundamental rights stipulated by section 8(2), a reading to which I shall refer in this article as a verticalisation of the application provision embodied in section 8(2). In South Africa, this verticalisation takes place in the form of what has become known as ‘indirect horizontal application’ In the United States and Germany the verticalisation takes place by introducing the term ‘state action’ into the explanation as to why some private or horizontal relations are affected by the application of fundamental rights.
2) The inaccuracy that attaches to the term ‘horizontal application’ whenever the application of fundamental rights to private legal subjects gets verticalised, requires us to discern more acutely what is really at issue when we invoke the term ‘horizontal application of fundamental rights’. My argument is that the term is not so much concerned with the category of legal subjectivity to which it applies. Horizontal application is not so much concerned with the simple question whether fundamental rights apply to private legal subjects. The horizontal application of fundamental rights is much rather or much more fundamentally concerned with the question whether a bearer of legal subjectivity is involved in the privatisation of the political process or the public sphere. As such it goes to the heart of the feudal and colonialist usurpation of political power by private or economic power to which I have referred above in the context of Leopold II’s ownership of the Belgian Congo. I shall explain the point that horizontal application of fundamental rights is much rather concerned with the question whether legal subjectivity is involved in the privatisation of the political or the public with reference to two German horizontal application or Drittwirkung cases, namely, the Lüth and Blinkfeuer cases.
3) Defining the horizontal application of fundamental rights in terms of a resistance against the privatisation of the political or the public and not in terms of the application of fundamental rights to private legal subjectivity as such, allows us to invoke the horizontal application of fundamental rights in the context of any legal subjectivity, not only in the context of private legal subjectivity. Both private and public legal subjects can be involved in or responsible for a privatising colonisation of the public or the political. My argument will indeed be that a national government or public authority can itself be the subject (in the agency sense of the word) of a feudal or colonial privatisation of the political. I shall go so far as to argue that all abuses of fundamental rights constitute feudal privatisations of the public or the political, be they perpetrated by a private or a public legal subject, big business or government. I shall therefore also argue that constitutional review always concerns the horizontal application of fundamental rights. In terms of this argument, there is no such thing as the vertical application of fundamental rights. I shall also highlight in this regard the horizontalising effect of constitutional review and the application of fundamental rights. I shall argue, following Lefort, that political or public relations essentially consist in horizontal or non-hierarchical relations. The privatisation of the political concerns the attempt to verticalise the horizontality of public relations (to use this neologism again, but in somewhat different sense than the usage above). They are attempts to establish hierarchy. Constitutional review of such privatisations of the political concerns the restoration of the horizontality of the political. Again, this applies to the constitutional review of ‘private’ conduct as well ‘public’ conduct. The horizontalising effect of constitutional review impacts on business concerns that would usurp the political, but it also impacts on the relation between state and citizens. The horizontality of the political and the horizontalising effect of constitutional review render it nonsensical to refer in this regard to ‘the state and its subjects’. A relation between ‘state’ and ‘subjects’ would simply be too vertical, too hierarchical.
So the argument will be that both private legal and public legal subjectivity can be responsible for the feudal privatisation of the political. The inverse also applies. Both private legal and public legal subjectivity can be dedicated to guarding and respecting the horizontality of the political. It is in this regard that Blixen’s difference will be invoked. No one can escape from the privatising and verticalising quest for economic survival, the quest for survival that always subordinates the other to the self. Hence the inevitability of a private and privatising legal subjectivity that always harbours the potential for privatising the political. It should be noted in this regard that another inversion of standard legal language is at issue here. Standard legal dogma refers to private relations as horizontal. The arguments that I develop hold that private or economic relations always concern the vertical or hierarchical relations between selves and subordinated others. It is the political or the public that undoes these private hierarchies. To repeat, no one can escape from private legal subjectivity. It will become clear below that this is or was also true of Blixen herself. Yet, as we shall see in her case, private legal subjectivity can be graced with a certain dispossession.
The arguments that I develop would imply that it is no longer feasible to maintain a pure or stable distinction between the private and the public. Private and public subjectivity can respect and safeguard the political. Private and public subjectivity can also privatise or destroy the political. And the distinction between respecting and safeguarding, on the one hand, and privatising and destroying, on the other, we shall see, is never quite clear. We would therefore do well in this regard to remember Derrida’s remark concerning the fundamental linguistic instability of the distinction between the private and the public5. This instability relates directly to the fragility and precariousness of the paradox that Lefort avers to lie at the heart of constitutional democracy. Constitutional democracy concerns government by men and women, but also by no-one in particular. Democracy requires government by some and by none. How can one ever safeguard, safeguard absolutely, the some from becoming one, or a few, a privatising and depriving few?