The issue of state action/horizontal effect in comparative constitutional law

Проблема действия государства/горизонтального действия в сравнительном конституционном праве
Mark Tushnet
2003-01-01

comparative constitutional lawconstitutional courtshorizontal effectstate actionweak judicial review
This article examines the horizontal effect of constitutional norms (or the “state action” problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. Systems with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments. The article also examines ways of resolving the state action problem, either through substantive constitutional doctrine or through weak forms of judicial review as illustrated by the Grootboom decision of South Africa's Constitutional Court.
1
Generalized, centralized constitutional courts make resolving horizontal-effect questions easier than specialized courts, especially within strongly federal systems.
2
South Africa’s Constitutional Court decision in Grootboom illustrates weak-form judicial review as one approach to resolving horizontal effect.
3
Stronger commitments to social-democratic norms facilitate extending constitutional protections to private relationships.
4
The difficulty of applying constitutional norms to private actors varies with constitutional structure and ideological commitments.
5
The state-action problem can be addressed through substantive constitutional doctrine or weak-form judicial review.

constitutional systems and their application of constitutional norms to private relationships

the horizontal effect (state action problem) of constitutional norms and its variation with constitutional structure, ideological commitments, and mechanisms of judicial review

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2003-01-01
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Mark Tushnet
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