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Published online by Cambridge University Press: 18 July 2014
Should courts seek to apply the concept of equality—as developed in public law litigation—in controversies between private parties? In this review article I argue that the distinction between the concept of “private” and “public” in current society is essentially based on the way equality is treated in each of these fields of social activity. This is because things in our society that are regarded as “public” are those that belong, equally, to everyone, while the things that are “private”—do not. Accordingly, the public field is dominated by the norm of political equality, while the private law field is dominated by the absence of a strict requirement for equal distribution of economic goods. So far, the phenomenon of courts applying the norm of equality in the private law field referred, largely, to cases in which courts enforced some fundamental requirements of political equality, such as the norm against racial discrimination, in private law litigation. Thus, this phenomenon does not raise serious questions of institutional legitimacy in current liberal democracy.
Les cours, devraient-elles appliquer le concept d'égalité tel que développé dans la jurisprudence de droit public aux controverses entre des parties privées? Je propose dans cette note critique que, dans nos sociétés contemporaines, la distinction entre les concepts du «privé» et du «public» se fonde sur la manière de traiter de l'égalité dans ces deux champs d'activité sociale. Il en est ainsi parce que les choses qui sont considérées dans nos sociétés comme «publiques» appartiennent de manière égale à chacun, ce qui n'est pas le cas des choses «privées». Le domaine public est donc dominé par la norme de l'égalité politique alors que celui du droit privé est soumis à l'absence d'une exigence stricte de distribution égalitaire des biens économiques. À date, le phénomène des cours appliquant la norme d'égalité dans le champs du droit privé réfère surtout aux litiges où il s'agissait de maintenir des principes fondamentaux de l'égalité politique, comme la norme interdisant la discrimination raciale. Le phénomène ne met donc pas sérieusement en question la légitimité institutionnelle en démocratie libérale contemporaine.
1 Friedmann, Daniel & Barak-Erez, Daphne, eds., Human Rights in Private Law (Oxford: Hart Publishing, 2001).Google Scholar
2 See e.g. Board of Governors of Seneca College of Applied Arts and Technology v. Bhadauria (1981), 124 D.L.R. (3d) 193 (the plaintiff, a woman of East Indian origin claimed that she was denied a teaching position due to her national origin); Vriend v. Alberta, [1998] 1 S.C.R. 493 (the plaintiff lost his job at a private college after revealing to his employers that he is gay); Lörrach, ArbG, Arbeit und Recht, 151, (1993)Google Scholar, upheld by Stuttgart, LarbG, Neue Zeitschrift für Arbeitsrecht, 416 (1994)Google Scholar, (the lower German labor court decided in a case of a social worker employed by a religious body that dismissal based on sexual orientation is unlawful, the decision was held by the upper labor court); BAG, 23 June 1994, [1994] NZA 1080 (the German Labor Court stating that dismissal on the ground of homosexuality is a violation of the good faith duty under s. 242 of the BGB); Leon Johnson v. Zema Systems Corporation, 170 F.3d 734 (1999) (an African-American Employee who worked for the employer, which segregated its white managers from its minority managers, paid minorities less, and allowed racial epithets to be used on its premises, and fired the plaintiff ostensibly to cut costs and flatten its management structure, the court found the employer's behavior discriminating on the basis of race). See also 47 BAGE 363 (1984) (the German Federal Labor court found that the “reasonableness” of the employer's orders to the employee must be evaluated in light of the employee's constitutionally guaranteed freedom of conscience while dealing with a press operator in a private printing shop who was fired due to his refusal to print an advertisement that he believed glorified war).
3 Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986] 2 S.C.R. 573 [Dolphin Delivery] (discussing the right of workers and union members to picket on the employer's premises); Department Store Union, Local 558 v. Pepsi-Cola Beverages (West) Ltd., [2002] 1 S.C.R. 156 (the Canadian Supreme Court interpreted the common law rules on secondary picketing in accordance with the Charter value of free expression and decided secondary picketing would be illegal only if accompanied by tortious or criminal activity); Thornhill v. Alabama, 310 U.S. 88 (1940) (striking down law prohibiting picketing in front of employer's premises); and compare Food Employees v. Logan Plaza, 391 U.S. 308 (1968) (members of petitioner union were allowed to peacefully picket inside the complex of a shopping center) and Marsh v. Alabama, 326 U.S. 501 (1946) (exclusion of speaker from private property is subject to constitutional limitations because property owner was operating a company town and thus exercising public function), with Hudgens v. NLRB, 424 U.S. 507 (1976) (exclusion of picketers from shopping center is not subject to constitutional limitations because shopping center is not exercising public function); Case of Appleby and Others v. The United Kingdom (2003), V Eur. Ct. H.R. 222, (44306/98) [2003] ECHR 222 (a private company that owns the town center refuses entry to the plaintiffs who wished to protest against local development plans; the Court held that genuine, effective exercise of the freedom of expression does not depend merely on the state's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals).
4 See e.g. Jones v. Toben, [2002] R.C.A. 1150 (the Australian Federal Court found that an Australian website that denied the Holocaust and vilified Jewish people was unlawful under the provisions of the Racial Discrimination Act 1975 dealing with offensive behavior based on race); C.C. (Jerusalem) 11258/93 Naamna v. Kibutz Kalia Takdin—Shalom 96(3) 1639 (1.1.96) (the plaintiffs claimed that they had been denied entry to a water park owned by the defendants due to their Arab origin and won compensations); C.C. (Tel-Aviv) 15/97, Shamisian v. Ganey Rosmary Restaurant (unpublished) (an Israeli night club was required to compensate a handicapped plaintiff for it's refusal to let her enter the club, due to her disability). See also examples of the use of human rights norms as a component of the cause of action, for example, race and sexual orientation (supra note 2), as well as examples of the use of the right of expression as a defense against tort action in the picketing cases (supra note 3).
5 In particular this phenomenon is largely absent from the jurisprudence of the U.S, see Gardbaum, Stephen, “The ‘Horizontal Effect’ of Constitutional Rights” (2003) 102 Mich. L. Rev. 387 at 388CrossRefGoogle Scholar (explaining that in the United State the question of the applicability of human rights to private law “(…) has long been deemed fully and definitively resolved by a constitutional axiom: the state action doctrine. With the exception of the Thirteenth Amendment, both the text and authoritative precedent make clear that with respect to its individual rights provisions, the Constitution binds only governmental actors and not private individuals. End of Story.”)
6 See infra text accompanying note 29.
7 See e.g. Tate, Neal C. & Vallinder, Torbjorn, eds., The Global Expansion of Judicial Power. (New York: New York University Press, 1995)Google Scholar; Jacob, Herbert & Blankenburg, Erhard et al. , Courts, Law and Politics in Comparative Perspective (New Haven: Yale University Press, 1996)Google Scholar; Hirschl, Ran, “The Political Origins of Judicial Empowerment through Constitutionalization” (2000) 25:1Law & Soc. Inquiry 91.CrossRefGoogle Scholar
8 See e.g. Minow, Martha, “Public and Private Partnerships: Accounting for the New Religion” (2003) 116 Harv. L. Rev. 1229CrossRefGoogle Scholar; Schneiderman, David, “Constitutional Approaches to Privatization: an Inquiry into the Magnitude of Neo-Liberal Constitutionalism” (2000) 63 Law & Contemp. Probs. 83CrossRefGoogle Scholar; Veljanovski, Cento, “Privatization in Britain—the Institutional Constitutional Issues” (1987–1988) 71 Marq. L. Rev. 558Google Scholar; Gillette, Clayton & Stephan, Paul, “Constitutional Limitations on Privatization” (1998) 46 Am. J. Comp. L. Supp. 481CrossRefGoogle Scholar; Morris, Paul, “The Impact of Constitutional Liability on the Privatization Movement after Richardson v. McKnight” (1999) 52 Vand. L. Rev. 489Google Scholar; Aman, Alfred C. Jr., “Privatization and the Democracy Problem in Globalization: Making Markets more Accountable through Administrative Law” (2001) 28 Fordham Urb. L.J. 1477Google Scholar; D'Agata, David J., “School Privatization and Student Rights: A Comparison of Canadian and American Law Regarding Searches and Seizures Conducted in Privatized Schools” (2003) 34 U. Miami Inter-Am. L. Rev. 315.Google Scholar
9 Somerset v. Stewart (1772), Lofft 1, 98 E.R. 49 (K.B.), cited in Friedmann & Barak-Erez, supra note 1 at 2.
10 See Todd D. Rakoff, “Enforcement of Employment Contracts and the Anti-Slavery Norm” in Friedmann & Barak-Erez, supra note 1 at 283 (arguing that this norm has been an essential part of both public and private law in the U.S ever since the beginning of the twentieth century and questioning the value of the distinction between public and private law in this context).
11 See Peter Benson, “Equality of Opportunity and Private Law”, in Friedmann & Barak-Erez, supra note 1 at 201, 224–25; Amnon Reichman, “Property Rights, Public Policy and the Limits of the Legal Power to Discriminate”, ibid. at 245, 254–57.
12 S. 826 & s. 242 of the German Civil Code (BGB) translated in Goren, S., The German Civil Code (Littleton & Rothman, 1994).Google Scholar See Andreas Heldrich & Gebhard M. Rehm, “Importing Constitutional Values through Blanker Clauses” in Friedmann & Barak-Erez, supra note 1 at 113, 114–15; Christian Starek, “Human Rights and Private Law in German Constitutional Development and in the Jurisdiction of the Federal Constitutional Court”, ibid. at 97, 98.
13 This model is known as The Indirect Application Model, see Aharon Barak, “Constitutional Human Rights in Private Law”, in Friedmann & Barak-Erez, supra note 1 at 13, 21 [Barak, “Indirect Application Model”]; or the Weak Horizontal Effect Model, see Hugh Beale & Nicola Pittam, “The Impact of the Human Rights Act 1998 on English Tort and Contract Law”, ibid. at 131, 135–36 (discussing the influence of the Human Rights Act on UK law). Compare Gardbaum, supra note 5 at 45.
14 This model is known as The Direct Application Model, see Friedmann & Barak-Erez, supra note 1 at 14 or as the Direct Horizontal Effect Model, see Beale & Pittam, ibid. at 133. For further discussion of the various models of application of human rights to private law, see infra text accompanying note 19.
15 For a critique on the Indirect Application Model see Anton Fagan, “Determining the Stakes: Binding and Non-binding Bills of Rights”, in Friedmann & Barak-Erez, supra note 1, 73 at 83–87, and see accompanying text, infra note 24. For a critique of the directhorizontal model see Gardbaum, supra note 5 at 417 (arguing that even if one reads the constitution as directly applying to private actors, this does not necessarily mean that it applies to private parties in the same way as to public agencies).
16 See e.g. Benson's illuminating analysis that “(…) private law is understood as a set of doctrines, principles, and values that specify fair and reasonable terms for voluntary and involuntary interactions between individuals”, supra note 11 at 208.
17 See Lorraine E. Weinrib & Ernest J. Weinrib, “Constitutional Values and Private Law in Canada” in Friedmann & Barak-Erez, supra note 1, 43 at 47–48
18 See Roger Brownsword, “Freedom of Contract, Human Rights and Human Dignity” in Friedmann & Barak-Erez, supra note 1, 181 at 191–202.
19 See Reichman, supra note 11 at 247. In another article, Peter Benson discusses the limitations of this argument in the context of the development of the concept of equality of opportunity in private law, see Benson, supra note 11.
20 This is The Non-Application Model, see Barak, “Indirect Application Model”, supra note 13 at 18–21, known also as The Vertical Model, see Gardbaumn, supra note 5 at 394–96.
21 This is the “direct application” model, see Barak, ibid. at 14–17, and see note 14 and accompanying text.
22 See Barak, ibid. at 21–25 as well as note 13 and accompanying text An additional model discussed by Barak is called The Judiciary Model (ibid. at 25–28) according to which constitutional norms do not apply to private individuals but since they apply to the courts, the courts are authorized to enforce constitutional norms also in private law litigation. The flaws in this argument seem apparent. Notably, the fact that the courts are under duty to obey constitutional norms tells us very little about the meaning and implications of these norms in any given case. For further discussion of this model see Barak, ibid. at 27–28.
23 The Indirect Application Model has been adopted by high courts in several legal systems which encountered the question of the application of human rights to private law litigation. Barak notes that the model was adopted by courts in Germany, see 7 BVerfGE (1958); Italy, see Sentenza 14 luglio 1986, 184, Gazzella uffiale, la serie speciale, 23 lugilio 1986, no. 35; Spain & Japan, see Tokáno v. Mitsubishi Jushi K. K., 27 Minshu 1536 (for the English version see 7 Law in Japan 150), cited in Barak, ibid. at 22–24, as well as by the Israeli Supreme Court, see C.A. Hevra Kadisha v. Kastenbaum, (1992) 46(2) P.D. 464. Moreover, and despite earlier rejections of the model (see Dolphin Delivery, supra note 3) this model seems to be supported by various opinions of the Canadian high courts at least to the extent that the Canadian Supreme Court said that the Charter may influence the development of the common law by the judiciary, see e.g. Hill v. Church of Scientology, [1995] 2 S.C.R. 1130; M.(A.) v. Ryan, [1997] 1 S.C.R. 157 (holding that the common law rules of psychiatrist-patient privilege must be modified in light of Charter values); Department Store Union, Local 558 v. Pepsi-Cola Beverages (West) Ltd., [2002] 1 S.C.R. 156 (the Court interpreted the rules in accordance with the Charter value of free expression and decided secondary picketing would be illegal only if accompanied by tortious or criminal activity), cited in Barak, “Indirect Application Model”, supra note 13 at 19–20. See also Gardbaum, supra note 5 at 398–401.
24 This is in essence the case both with regard to the Canadian Charter of Rights and Freedoms: “[t]his Charter applies: (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament (…) and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”, see Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 32(1) [Charter]. See also Gardbaum, supra note 5. With regard to the Israeli Basic Law: Human Dignity and Liberty 1992, online: The Knesset website <http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm>, see s. 11 which states: “[a]II governmental authorities are bound to respect the rights under this Basic Law.” See also Barak, A., Interpretation in Law—Constitutional Law, vol. III (Jerusalem: Nevo, 1994) at 657 (in Hebrew).Google Scholar The German Federal Constitutional Court has consolidated the indirect application model in 7 BVerfGE (1958). The basic rights have only an indirect effect, with the exception of art. 9, para. 3, of the Basic Law. See also Starek, supra note 12 at 101–04; Goldberg, Andreas, Mourinho, Dora & Kulke, Ursula, Labor market discrimination against foreign workers in Germany, International Migration Papers 7, (Geneva: ILO, 1995), online: International Labour Organization <http://www.ilo.org/public/english/protection/migrant/download/imp/imp07e.pdf>Google Scholar; Barak, “Indirect Applications Model”, supra note 13 at 22–23; Heldrich & Rehm, supra note 12 at 123.
25 Human Rights Act 1998 (U.K.), 1998, c.42.
26 Friedmann & Barak-Erez, supra note 1, 133.
27 Ibid. at 181.
28 Ewan McKendrick, “Negligence and Human Rights: Reconsidering Osman” in Friedmann & Barak-Erez, supra note 1, 331. For a discussion of the state of the law in South Africa see Fagan, ibid. at 73.
29 See Starek, as well as Heldrich & Rehm, supra note 12.
30 See Reinhard Ellger, “The European Convention of Human Rights and Fundamenal Freedoms and German Private Law”, in Friedmann & Barak-Erez, supra note 1, 161.
32 Gerhard Rehm, “Privacy in the Digital Age: Vanishing in Cyberspace?” ibid. at 373.
33 Supra note 22 and accompanying text.
34 Supra note 23 and Starek, supra note 12 at 97.
35 For a discussion of the issue of human rights in private law as involving major institutional questions see e.g. Gerstenberg, Oliver, “What Constitutions Can Do (but Courts Sometimes Don't): Property, Speech and the Influence of Constitutional Norms on Private Law” (2004) 17 Can. J.L. & Juris. 61, 62 at 65–66.CrossRefGoogle Scholar
36 In principle such legislation may be subject to constitutional tenets based upon the argument that it infringes on the freedom of contract and other property constitutional rights of private actors. This indeed was the foundation of the Lochner Doctrine espoused by the American Supreme Court during the first three decades of the twentieth century, see Lochner v. New York, 198 U.S. 45 (1905) at 68–72, Harlan, J., dissenting (invalidating legislation that limited the working hours of bakery employees to 60 hours per week); see also Coppage v. Kansas, 236 U.S. 1 (1915) (invalidating legislation that prohibited “yellow dog” contracts, requiring workers to refrain from union membership); Adair v. U.S., 208 U.S. 161 (1908). At the same period the New York Court of Appeal went as far as to assert that legislation altering the common law could be unconstitutional, see Ives v. South Buffalo Ry Co., 94 N.E. 431 at 444 (N.Y. 1911). See generally Tushnet, Mark, “Comparative Constitutionalism: State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations” (2002) 3 Chi. J. Int'l L. 435 at 444–45.Google Scholar
37 Supra note 24. A notable exception is the new Constitution of South Africa which directly imposes constitutional duties on private parties, see s. 8(2) of the Constitution of South Africa, 1996: “[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.” The exact meaning of this provision has not yet been clarified as it has been in the case of the interim constitution in the case of Du Plessis and Others v. De Klerk and Another, [1996] 3 S.A. 850 (C.C.) (the court held that the interim Constitution could only be applied vertically), see Cockrell, , “Private Law and the Bill of Rights: a threshold issue of ‘horizontality’” in Bill of Rights Compendium, (Durban: Butterworth, 1997)Google Scholar; Loots, , “The Impact of the Constitution on Environmental Law” (1997) S.A.J.E.L.P. 57 at 59Google Scholar and Fagan, supra note 15 at 73–74. But compare Sprigman, C. & Osborne, M., “Du Plessis is not Dead: South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes” (1999) 15 S.A.J.H.R. 25 at 25–51Google Scholar (denying that the 1996 Constitution applies horizontally and asserting that the 1996 Constitution allows indirect horizontal application as foreseen in Du Plessis v. De Klerk, but does not mandate it). Another exception is Ireland whose Supreme Court has interpreted certain of the rights provisions in its constitution as directly binding on private parties, see Meskell v. Coras Iompair Eireann, [1973] I.R. 121 at 133 (where the court held that'it was a violation of the right of freedom of association for an employer or union, alone or in combination, to force an employee to join a union. The court stated: “(…) therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the (…) persons who have infringed that right.”) See also Gardbaum, supra note 5 at 396.
38 See Benson, supra note 11 at 241. Benson discusses some American cases in which the courts were willing to enforce on property owners constitutional duties to allow entry on the basis of the argument that the private property had been dedicated by its owners to public use, see e.g. State of New Jersey v. Schmidt, (1980) 423 A. 2d 615 (ibid. at 240).
39 To use Waldron terminology with regard to the meaning of private property: “[t];he owner of a resource is simply the individual whose determination as to the use of the resource is taken as final in a system of [private property]”, see Waldron, Jeremy, The Idea of Private Property (Oxford: Clarendon Press, 1988) at 39.Google Scholar For a useful discussion of the connection between the institution of private property and inequality in resource allocation entailed by the market system see Waldron, ibid. at 53–55.
40 The same idea applies, I believe, to my control over my own body, and, in some sense to my privacy (this is my private business; therefore, I am entitled to have access to some information that others are not).
41 I do not mean to argue that this suggested distinction between the terms “private” and “public” is exhaustive in the sense that it covers all possible aspects of these terms. Rather, I offer a certain way to look at this distinction from the point of view of equality. For other definitions of the term “private” see e.g. Minow, supra note 8 at 1229, as well as Friedmann & Barak-Erez, supra note 1.
42 I use the term “social goods” to include goods that are related to civil liberties and social opportunities as well as economic goods (income and wealth). See Rawls, John, A Theory of Justice (Oxford: Oxford University Press, 1971)Google Scholar (presenting two principles of justice according to which all “primary” social goods should be distributed under the Rawlsian political theory).
43 For a fuller account of this argument see Dotan, Yoav, “Campaign Finance Reform and the Social Inequality Paradox” (2004) 37 Mich. J. L. Ref. 955 at 969–75.Google Scholar
44 This is the principle of “transactional equality” discussed by Weinrib & Weinrib, supra note 17 at 67–69.
45 For the lack of commitment in private law to the principle of distributive justice see Benson, supra note 11 at 214–215. And compare the discussion of the function of the principle of distributive justice in tort law in Grosskopf, supra note 31 at 358.
46 See text accompanying note 40, where I use the example regarding the question whether health services should be a public or private good. See also Freeman, Jody, “The Private Role in Public Governance” (2000) 75 N.Y.U.L. Rev. 543 at 552–53Google Scholar, where Freeman states that “(…) virtually every service and function we now can think of as “traditionally” public (…) has at one time or another been privately preformed.” I neglect for the purpose of the current discussion the question of whether and under what conditions courts are entitled to interfere in democratic decisions to enforce “social rights,” since even when courts so do, they do not normally so interfere on the basis that the relevant goods (i.e., the subject of the social right) should be distributed equally among all members of society, but only that some goods that are normally distributed by the market, should be transferred to those with the most pressing need in society. For the discussion of the relationship between the concept of social rights and the concept of human rights in private law see Tushnet, supra note 36.
47 See Brownsword, supra note 18 at 183, 193, asserting that interferences with contract rights necessitates “(…) good [normative] reasons.” One such reason may be that the contract itself infringes on human dignity, see supra note 17 and accompanying text.
48 But compare with supra note 36.
49 Compare the discussion of the place of distributive justice in tort law, supra note 45.
50 See also Rawls, John, “The Basic Liberties and Their Priority, in Equal Freedom” in Darwall, Stephen, ed., Selected Tanner Lectures on Human Values (Ann Arbor: University of Michigan Press, 1995) 105 at 143Google Scholar, where he states that “[e]qual basic liberties are the same for each citizen (…) but the worth, or usefulness of liberty is not the same for everyone.”
51 Compare the discussion of the judicial process of balancing the interest of both parties to the private law litigation in Weinrib & Weinrib, supra note 17 at 58–59.
52 Supra note 2.
53 As an exception to the above there are two Irish cases in which Irish courts enforced the constitutional right to earn a livelihood on parties to private law litigation, see Lovett v. Gogan, [1995] 1 I.R. 12; Parsons v. Kavangh [1990] 10 I.R. 560 (Ir. H. Ct.). The Israeli Supreme Court also applied the right to minimal livelihood as a defense in private law litigation in which the defendant argued that paying his alimony debts to his former wife would infringe on his right to minimal livelihood, see C.A.A. 4905/98 Gamso v. Yishayhoo (1998) 55(3) P.D. 360.