The Horizontal Effect Doctrine as a Form of Porosity among Legal Systems
In: Porosités du droit / Law's porosities, Vivian Grosswald Curran (ed.). Société de Législation Comparée, Paris 2021, 63-76
11 Pages Posted: 30 Oct 2018 Last revised: 18 Mar 2021
Date Written: October 29, 2018
This paper analyzes the third-party or horizontal effect doctrine (HED) of fundamental rights from a functionalist perspective. It argues that, following the processes of legal pluralization, globalization and transnationalization, the main function of this doctrine has become allowing and regulating the reciprocal influence, interaction and adaptation of States’ law, on the one hand, and other overlapping forms of either legal or social normativity, on the other hand. This (re-)definition aims to highlight that the HED does not (mainly) concern the relationships between private actors regulated by State law or the mere balancing between individual rights, but rather the relationships between State law and non-State law(s). The paper briefly recalls the conceptual ties between the traditional understanding of HED and the liberal constitutional model, and their consequences on the application of such doctrine on the involved social actors. Then the paper analyzes the social phenomena calling for a re-definition of HED and, also based on the instruments of systemic sociology, puts forward some comparative law examples and a case study concerning the potential practical consequences of such re-definition.
Keywords: horizontal effect doctrine, legal pluralism, comparative constitutional law, functionalism, systemic sociology
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