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, 
South Africa.

jwgvdw@raua.rau.ac.za

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 <http://elj.warwick.ac.uk/global/03-1/vanderwalt.html>

Abstract

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

1. Introduction

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 property. 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 system. 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 ownership. 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 democracy.

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 public. 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?

2. Neocolonialism in Post-Apartheid South Africa

The link between colonialism and feudalism invoked above would imply that neo-colonialism should also be considered to establish a neo-feudalism. This is indeed my argument in what follows. The principal role players in today’s global economy, huge multinational companies, have gained sufficient power to impact incisively on the efforts of national governments to govern their states in terms of local public interest. The trans-national mobility of big business has a marked effect on the political will of national governments as far as issues such as tax and labour legislation are concerned. Governments are today constantly subject to the need to compete with other governments to retain the favour of the big companies that drive their economies. That this is so is common knowledge and need not be argued extensively. However, I would like to give a specific edge to my argument by relating a number of events that I find most significant in this regard. In December 1999, Edzard Reuter, former managing director of Daimler-Benz, wrote the following in the German weekly newspaper Die Zeit:

‘I ask myself, whether economics and politics have not in the meantime exchanged their traditional roles. Much more drastically than I would venture to do, wrote Günther Grass recently in Die Zeit: No longer the elected government, no chancellor determines the guidelines of politics today. In their place govern without legitimation the directors of merged and globally subliminal economic power: … What is the paper worth on which our constitution is written when it is daily scorned, accompanied by threats ‘or the government heeds our demands, or we move to a different location’. Strong tobacco. Can we nevertheless not, at least in the Federal Republic, but also in other western countries, discern daily how quickly governments give in when they are put under pressure by the representatives of commercial organisations, pace setting moguls of specific branches of business or a number of important big enterprises? Do not in fact many indications speak for the reality that the primacy of politics is under threat?’ (Die  Zeit, 9 December 1999, p 3, trans).

Now, if this can be said so forcefully of the already developed countries of the West, how much more would countries that are desperately in need of economic development be subject to the demands and ultimatums of a mobile global economy? This again seems to speak for itself, but let us bring Daimler into the picture again, this time no longer as Daimler-Benz, but as Daimler-Chrysler. The National Union of Metal-Workers of South Africa initiated a strike in the South African motor industry in August 2001. The strike was legal. It complied with the requirements of South African labour legislation. Employers in the motor industry were therefore legally required to renegotiate new remuneration packages with the workers and submit the matter to arbitration should they ultimately fail to reach an agreement with the union. After a week, however, Daimler-Chrysler simply threatened to pull out of South Africa, a move that would have cost hundreds of jobs in a country where unemployment already affects close to 50 percent of the workforce. Daimler-Chrysler spokesperson Annelise van der Laan was quoted by the Johannesburg daily newspaper The Star to have said: ‘Moving the production overseas is definitely a consideration if the strike does not cease soon.’ (The Star, 14 August 2001, p 1.) I wish to argue that this threat to take one’s business somewhere else if a strike does not end soon constitutes a drastic curtailment of the fundamental right to collective bargaining guaranteed by section 23 of the South African Constitution. The question is how to subject this curtailment to constitutional review in order to establish whether it is disproportional, to establish whether it constitutes not only a limitation, but also a violation of the right to collective bargaining. 

Allow me to let the plot thicken. The South African Government entered an agreement with international arms manufacturers The European Aeronautics Defence and Space Company to buy arms for an amount in excess of ZAR 50 billion (USD 4 billion). The arms deal has been criticised severely for being unnecessary and devoid of reason. South Africa currently faces no military threat and there is no arguably potential military threat that justifies a huge expenditure on armament at the moment, especially if the social and developmental crises faced by the government (among them an officially denied but undeniably rampant AIDS epidemic) are taken into consideration. The South African branch of the activist group ‘Economists Allied for Arms Reduction’ has in fact filed an application in the Cape High Court on Wednesday, 21 November 2001 that the arms deal be scrapped. The group claims, among other things, that the government had acted irrationally and unconstitutionally in deciding to go ahead with the arms deal and thus failed to heed the plight of poverty stricken South Africans, as it is required to do by the South African constitution. (Ellis, 2001, p 1) I shall return to this application below. Suffice it to say for now that South Africa seems to have fallen prey to the scourge of excessive military and armament expenditure that is so characteristic of undeveloped countries and which in Africa has given rise to seemingly endless warfare. Consider in this regard Helmut Schmidt’s chilling observation that developing countries spend on average six times the amount of money that they receive in the form of development aid on military goals (Schmidt, 1999). Schmidt mentions the United States, former Soviet Union States and Germany itself as the major suppliers of military goods and armaments today. So it appears that what is ostentatiously given as development aid with the one hand is most often amply taken back by the other in the form of revenue earned from selling destructive weaponry.

Let us return to some details of the South African arms deal. The deal has all along been accompanied by allegations of corruption in the form of personal benefits received by government officials involved in negotiating the deal. One of these officials, the ANC chief whip Tony Yengeni, was eventually arrested and charged with corruption with regard to his involvement in the deal. Yengeni had bought an expensive four by four vehicle at an astounding discount through the very company with whom the arms deal was negotiated, namely, the already mentioned German company The European Aeronautics Defence and Space Company. The four by four vehicle that Yengeni bought was a Mercedes Benz. Asked why he bought a car from an arms supplying company instead of a car company, he answered: ‘the two companies were one with two names’:

‘So when I met Michael Woerfel [the suspended managing director of the European Aeronautics Defence and Space Company], it made sense for me to say I wanted a car and could he assist me. He said of course. I did not see anything wrong. I really didn’t. The car that came, I liked it. He said it would do me good to drive a Mercedes Benz. I agreed’ (The Sunday Independent, 7 October 2001, p 1).

Daimler-Benz or Daimler-Chrysler, Mercedes in any case, all over the place. We can of course not simply take it from Yengeni that Daimler-Chrysler and the European Aeronautics Defence and Space Company constitute one company with two names. Suffice it to simply say that a co-operative network of two huge foreign business concerns seems to have been playing ball in South African politics as they saw fit. When they do not like the labour legislation, they threaten to go and build their Mercedes Benzes elsewhere. When they are required to facilitate an arms deal, they provide Mercedes Benzes at discount prices. Who exactly carried the discount of Yengeni’s Mercedes is of course difficult to say. Suffice it to say again that a co-operation of economic forces was involved to which the moral exigencies of South African politics are patently of secondary if any concern. An official government investigation into the arms deal has in the meantime found that only two government officials had ‘conflicting interests’ in the arms deal and that the deal as such was not voidable on account of corruption. However, the question regarding the reasonableness of the deal as such still remains to be answered.

The Minister of Defence, Mosiuoa Lekota, has defended the arms deal, saying: ‘being part of the international world placed obligations on South Africa to help in peace missions when requested to do so.’ ‘For that, the country had to have proper armaments.’ (Moya, 2001, p 5) We shall have to see how this argument stands up in court or what other arguments are going to be raised in response to the court application that the deal be scrapped. In response to Lekota’s justification, one should ask whether the international community really expects a national government to neglect its most immediate duty of creating internal stability and doing everything in its power to provide a minimum level of material security to all its citizens in order to comply with the rather vague and remote notion of a peace-keeping duty the country owes the international community. If it is to be believed that we owe military service in the event of conflict in which we are not a party ourselves even if this should mean the neglect of our own national interests, then we play into the hands of an even starker international feudalism than may have been contemplated.

I shall return to the arms deal in Part Four to argue that the government’s own conduct in connection with the deal should be deemed to constitute a feudal privatisation of the political. Let me first go back to the question why the horizontal application of fundamental rights should be understood in terms of a resistance against feudalism.

3. Horizontal Application of Fundamental Rights as Resistance Against the Privatisation of the Political

As stated in the introduction above, the notion of the horizontal application of fundamental rights generally concerns the application of fundamental or constitutional rights to the horizontal relationships between private legal subjects. Such horizontal application of fundamental rights, to the extent that a particular legal system actually endorses it, must be said to constitute a new development in constitutional theory. According to the classical liberal understanding of constitutional rights, these rights only apply to the vertical relation between the state and its subjects. They are traditionally understood to prevent the abuse of state power vis à vis the liberty, life and property of the individual. The Constitution of South Africa of 1996 breaks with this traditional or classical understanding of fundamental rights in a revolutionary way. Section 8(2) of the Constitution stipulates the fundamental rights entrenched in the constitution to also bind private legal subjects, if applicable, taking into account the nature of the right and the duty it imposes. This express or direct stipulation of horizontal application is rather unique when one considers the way that horizontal application is dealt with in other jurisdictions of the world. The constitutional jurisprudence of the United States, for example, indirectly acknowledges the horizontal application of constitutional rights through the doctrine of state action. Constitutional rights are recognised to apply to the relationships between private legal subjects to the extent that some element of state involvement plays a role in the violation of a private legal subject’s constitutional right by another private legal subject (Tribe, 1988, pp 1688-1722). The same approach is evident in German Drittwirkung jurisprudence (Van der Walt, 2001b, pp 341-363). It can be argued that theses jurisdictions require a certain verticalisation of the horizontal relationship between private legal subjects before fundamental rights will be acknowledged to apply to such relationships. It should be mentioned that the South African constitutional jurisprudence has thus far also refrained from fully acknowledging the revolutionary articulation of the application provision embodied in section 8(2) of the Constitution. The South African Constitutional Court decided with reference to the 1993 Constitution that the Bill of Rights in principle applies only to the vertical relation between state and citizen. It applies horizontally, they argued, only to the extent that all law and therefore private law too had to concord with and promote the values embodied in the Bill of Rights. (Du Plessis v De Klerk, 1996, at 658) The court has had opportunities to review this position in view of the stipulation in section 8(2) of the 1996 Constitution but have thus far opted not to do so (Fose v Minister of Safety and Security, 1997, at 786).

The term ‘horizontal application of fundamental rights’ has therefore not yet been properly recognised in contemporary jurisprudence. The arguments that follow constitute an endeavour to do so. They endeavour to give proper recognition to horizontal application of fundamental rights as horizontal application, that is, as the applicability of fundamental rights to the horizontal relation between legal subjects. At issue will be an attempt to recognise and explain horizontal application of fundamental rights without taking recourse to notions of verticality. In fact, the recognition of horizontal application of fundamental rights is aimed at showing that the application of fundamental rights as such concerns a political resistance to hierarchy, that is, to any ‘verticalisation’ of the horizontal relationships between legal subjects. The argument is and will be that nothing or no one is exempted from the resistance to hierarchy or verticality that lies at the heart of the notion of fundamental rights. This, we shall see below, also applies to the state. The application of fundamental rights to the relation between state and citizens does therefore not entail the vertical application of fundamental rights, but the prevention of or at least the resistance against any hierarchical verticalisation of the relation between state and citizen. Perhaps we no longer or would not for long need to actually refer to horizontal application in this regard. Constitutional theory never needed to expressly make a point about vertical application before horizontal application came to be an issue in constitutional review. We would therefore no longer need to refer to horizontal application once vertical application has come to be seen as a spurious notion.

As if this inversion of existing constitutional theory is not already enough, the argument will go one step further and contend that all attempts at hierarchy or verticality can be understood in terms of the privatising endeavours of legal subjects to establish hierarchy, that is, to verticalise the horizontality of political relations. The horizontal application of fundamental rights thus concerns the resistance against the privatising, economising and possessive subjectivity of the legal subject. It concerns the resistance against the privatising, economising and possessive distortion of political freedom, that is, of the political freedom that consists fundamentally in horizontal relationships between citizens, the political freedom that consists in a fundamental absence of hierarchy, an absence of hierarchy that can also be expressed with reference to a fundamental equality before the law. The application of fundamental rights, which in terms of this argument is always the horizontal application of fundamental rights, concerns the resistance against privatising verticalisations of the political that destroys the political because the political is essentially a matter of horizontality, of strict equality before the law. As such, the application or horizontal application of fundamental rights necessarily entails a resistance against feudalism and colonialism, feudalism and colonialism being, as we have seen above, essentially a matter of a privatisation of the political that establishes hierarchy.

That horizontal application of fundamental rights entails a resistance against the privatisation of the political is well illustrated by two German Drittwirkung cases. The first case is the well-known Lüth decision of 1958. The second is what has become known as the Blinkfeuer decision of 1961. The understanding of fundamental rights in terms of the resistance against the privatisation of the political can also be illustrated with reference to the public function cases in the United States state action case law. These cases also concerned the constitutional review of private or privatising curtailments of political freedom (freedom of expression), but the severe limitation of their scope of application by later Supreme Court judgments undermines their exemplary force today. (Van der Walt, 2002b, pp 108 -109) Let us therefore turn to the Lüth and Blinkfeuer cases.

The Lüth Decision (Bundesverfassungsgericht 7, 198)

On 20 September 1958, the constitutional plaintiff, the chairman of the Hamburg Press Club called upon cinema owners and film distributors to boycott the film Unsterbliche Geliebte. The film was produced by Veit Harlan, a German filmmaker well known for his production of National Socialist propaganda films. Of these films, Jud Süss was the most notorious. The Domnick Film Production and the Herzog-Film companies, the former as the producer and the latter as the distributor of the film, successfully applied for an interdict in the High Court (Landgericht) of Hamburg that prohibited the defendant from calling film distributors and cinema owners to boycott the film Unsterbliche Geliebte. The court found the boycott to be wrongful (sittenwidrig). Harlan’s absolution from the criminal proceedings against the film Jud Süsss and the fact that the De-Nazification procedures subjected him to no restrictions as far as the practice of his profession was concerned, convinced the court that the boycott call was irreconcilable with the democratic legal and moral convictions of the German people (‘die demokratische Rechts- und Sittenaufffassung des deutschen Volkes’). The wrongfulness did not consist in the expression of a denigrating opinion with regard to Harlan, but in the way it tried to move the public to make it impossible for Harlan to continue his career as a filmmaker.

The Appeal Court (Oberlandgericht) of Hamburg subsequently dismissed the appeal against the High Court’s decision and the constitutional plaintiff therefore approached the Federal Constitutional Court (Bundesverfassungsgericht) with the claim that the decision of the trial court violated his fundamental right to freedom of speech. The Federal Constitutional Court upheld the claim on the ground that the boycott for which the defendant called was motivated by political interests and not by economic interests. The court argued that the call to boycott the film could not be regarded to have been wrongful, as the High Court argued. A boycott is not wrongful as such. Whether it is wrongful or not, must be decided by balancing the interests of the parties involved. The plaintiff did not pursue a private interest with the boycott, but a matter of serious public concern, namely, the image of German culture and the German film industry in the eyes of the world (BVerfG 7, 198, at 216). Private and economic interests must take a back seat when a matter of such fundamental public interest is at stake. This does not mean that such private interests are left without protection in such cases. Persons who believe their private interests to be prejudiced in the course of public debate can themselves join the debate to vindicate their interests. Public opinion, the court argued, depends on this conflict between freely expressed points of view (BVerfG 7, 198, at 219). The plaintiff cannot be said to have resorted to disproportionate measures to pursue the matter at stake. Addressing the meeting of the Press Club of Hamburg and sending an open letter to the press do not exceed the boundaries of the acceptable under the circumstances (BVerfG 7, 198, at 228).

The decision of the Federal Constitutional Court in the Lüth case was clearly concerned with the subordination of economic liberty and economic power to the political freedom that is to find expression in the freedom of expression and free public debate. This same concern, however, would lead to a remarkably different decision in the Blinkfeuer case. Let us take a closer look at the reasons for this different finding. 

The Blinkfeuer Decision (Bundesverfassungsgericht 25, 256)

To the end of August 1961, the publishing houses Axel Springer & Sohn, Hammerich & Lesser and Die Welt publishing company sent a letter to newspaper and magazine vendors, urging them not to distribute the weekly newspaper Blinkfeuer. The reason for this boycott was the inclusion of the East Berlin radio and television programmes with the rest of its radio and television information. The publishing houses added that it would seriously reconsider their business relations with those vendors who would not comply with this demand.

The editor of Blinkfeuer filed a claim for compensation of damages in the High Court of Hamburg, arguing that the conduct of the publishing houses constituted wrongful competition, since it was clearly conducting a boycott against Blinkfeuer. The publishing raised the defence that it was simply exercising its right to freedom of expression entrenched in Article 5 of the Federal Constitution (Grundgesetz). The High Court and Court of Appeal granted the claim for compensation, but the Federal Civil Court (Bundesgericht) eventually dismissed the claim, arguing that the publishing houses were not conducting wrongful competition against the claimant, but only sought to promote a political concern. This, the Federal Civil Court argued, was fully warranted by the right to freedom of expression entrenched in Article 5 of the Federal Constitution.

The claimant consequently appealed to the Federal Constitutional Court. The Constitutional Court upheld the appeal. It decided that the conduct of the publishing houses exceeded the boundaries of freedom of expression by resorting to economic pressure to force the newspaper vendors to comply with its wishes. The means by which a boycott in pursuit of a matter of public concern or a political point of view is conducted, must be reconcilable with the norms embodied in the Constitution if it is to fall within the scope of the right to freedom of speech. This conduct could not be squared with an argumentative endeavour to persuade others to freely endorse a particular point of view envisaged by Article 5. In fact, according to the Constitutional Court, the Federal Civil Court failed to see that the publishing houses used economic force, that is, means other than its own freedom of expression, to deprive another of the means to express itself freely. This could not be reconciled with the right to freedom of expression embodied in Article 5 (cf BVerfG 25, 256, at 268-269).

The Difference and Similarity between Lüth and Blinkfeuer

The Lüth and Blinkfeuer cases seem to confront us again and again with Derrida’s insight into the instability of the distinction between the public and the private, the political and the economic. In both cases, an economic boycott was called in pursuit of a political concern. In both cases, the Federal Constitutional Court clearly endeavoured to draw a distinction between the political and the economic and to subordinate the latter to the former. The court decided the cases differently because the politically motivated economic boycott in Lüth was pursued politically whereas the politically motivated boycott in Blinkfeuer was pursued economically. The boycott in Lüth won the favour of the court because the political manner in which the politically motivated economic boycott was conducted could be reconciled with the court’s subordination of the economic to the political. The boycott in Blinkfeuer failed to win the court’s favour because the economic manner in which the politically motivated boycott was conducted, constituted an economic distortion of the political. As such, it was at odds with the primacy the court purported to give to the political (BVerfG  25, 256 at 267). In other words, the judgments in both Lüth and Blinkfeuer constituted a resistance against an economic privatisation of the political. In terms of the concepts elaborated above, both judgments concerned a resistance against feudalisation and colonisation. Both judgements concerned the safeguarding of a fundamental horizontality, a fundamental equality before the law.

But was there ever a political goal that was pursued purely politically? Can an economic boycott really be as purely political as the Lüth decision seems to aver? Why would a political boycott wish to inflict economic impoverishment on the opponent? Is the will to impoverish another not logically and therefore always a will to self-enrichment? Is such impoverishment and enrichment not already at odds with the strict horizontality and equality on which the political turns? Can we ever escape from the circle of enrichment and impoverishment? Can we ever escape from the colonial and the feudal? These are the questions that the Derridean insight into the instability of the distinction between the public and the private persistently prompts us to ask.

We shall return to the nagging question regarding the inevitability of the feudal and the colonial. Let us first return to the point made above that the application of fundamental rights also resists the economic privatisation of the political by the state. The example of the Blinkfeuer case gives us a good vantage point from which we can do so. It shows us that a seemingly political goal can be pursued in an economic, privatising and possessive manner. This is exactly what happens when a politically elected government commences to pursue its political goals in a manner that denies the horizontality of the political. The feudal and the colonial need not begin with the usurpation of political power by a big economic concern such as Daimler-Benz or Daimler-Chrysler. It can also have its source in a government that ‘politically’ abuses the fundamental rights of its citizens or ‘politically’ fails to protect them as adequately as circumstances would seem to allow. Such a government patently governs to the benefit of some at the cost of others. ‘Politically’ must be written between scarecrows in this context, because such a government does not govern politically. It governs economically. Similar to what happened in the Blinkfeuer case, such a government pursues its ‘political’ goals in an economic and privatising fashion.  It introduces hierarchy or verticality in the relationship between state and citizen. It is this hierarchy or verticality that the horizontal application of fundamental rights aims to resist when constitutional review of state or government action is at issue. It aims to re-horizontalise. Let us take a closer look at the horizontalising or re-horizontalising effect of constitutional review in the context of the privatisation of the political by government.

4. Horizontal Application and the Horizontalising Call on Government to Justify Action of Public Interest

The argument developed thus far can be abridged as follows: The fundamental rights of citizens are the most fundamental criterion of public interest that we can contemplate. A government that abuses the fundamental rights of its citizens or fails to protect them as well as would reasonably seem possible does therefore not act in public interest. A government that fails to act in public interest acts in the pursuit of a non-public interest. It acts in pursuit of some or other private interest. Like Leopold II, such a government conflates political and economic interests. Such a government constitutes a feudal and colonial power within its own borders. Such a government no longer governs on behalf of everyone and no one in particular. It governs on behalf and to the benefit of some in particular at the cost of others. It grants feudal privileges. It thus creates a hierarchy that destroys the horizontality of the political. Constitutional review of government conduct in terms of the exigencies of the fundamental rights of citizens aims to restore the horizontality of the political. It aims to restore the equality of government and citizens before the law. How does or how could constitutional review aim to do this? It aims to do so by demanding that government justifies its conduct. The late South African constitutional theorist, Etienne Mureinik, argued almost prophetically that a government’s decision to purchase a nuclear submarine should be subject to the demand to justify the purchase of the submarine when such purchase appears to ignore more pressing demands on the national budget (Mureinik 1992, pp 464 -471). Mureinik’s argument has now come to a head with the court application brought by the Economists Allied for Arms Reduction to have the arms deal scrapped. The application is certainly all about the demand that government justify the arms deal in view of the seemingly much more pressing social demands on the national budget. The government has indicated that they will oppose the application. The basis of their response is not clear yet, but it is bound to turn at least partly on the argument that the decision to purchase arms is a government policy matter, the rationality of which lies beyond the jurisdiction of the court.

In other words, the response to the application is bound to turn on the exigencies of the doctrine of the separation of powers. It is important to note in this regard that the South African Government raised a similar argument in response to the constitutional challenge to their policy on the provision of antiviral drugs in public hospitals to prevent mother to child transmission of AIDS during birth. However, the Pretoria High Court and the Constitutional Court have rejected the argument in both hearings of the case. The court made clear on both occasions that the substantive review of government policy is accepted in many major jurisdictions of the world to be part and parcel of the judiciary’s power to scrutinise the constitutionality of government or state conduct, notwithstanding the obvious restraint that the doctrine of the separation of powers demands in this regard. 

What is at issue in a government’s refusal to have its policies subjected to a form of constitutional review that not only scrutinises the procedural rationality of state action, but also its substantive justification? At issue appears to be the assumption that the election process gives the party elected to govern a right to govern as they see fit, notwithstanding clarion clear outcries that their governance does not serve the interests of the general public. Is it sufficient to argue that the next election process will sort out the problem (knowing, moreover, that it will probably not) when millions and millions of new AIDS cases can be prevented in the meantime if government would just come to its senses? Is it sufficient to argue that the next election will sort out the problem if billions of rand will by that time have gone down the drain to purchase ‘a small fleet of ships, 30 light helicopters, nine fighter jets and a dozen trainer aircraft’ (Ellis, 2001) while millions of people will have continued to live and die in abject squalor?

At issue in the refusal to subject government policies to the demand for substantial justification is the depriving privatisation of public interest for the term of government for which a party has been elected. For five years such a government’s officials will have benefited economically from holding office in a way that casts a cloud over questions of public interest. Can such a government be said to govern on behalf of everyone and no one in particular? Or are we faced in this regard with feudal lords that govern as if the collective wealth of the people is there for them to use as they please? Let us leave aside the ominous questions as to why they please.

Constitutional review that calls on government to justify its conduct can be understood in terms of the horizontal application of fundamental rights because a government that does not act in public interest acts like a private legal subject. This, we have seen, is still in line with the standard understanding of horizontal application. It still falls short of what is really at issue when constitutional review brings the application of fundamental rights to bear on government or any other legal subject for that matter. Really at issue is the horizontalising effect of the call for justification. At issue is the demand that a government governs like citizens among citizens, on behalf of everyone and no one. At issue is the resistance against the verticality of feudal privileges and hierarchies.

Is horizontality possible? It may not be, as we shall see in the next and last section of this paper. But the resistance against verticality in the name of an impossible horizontality may just be possible. We deal here with the avoidance of the inevitable, the possibility of the impossible, the possibility that the impossible offers us. ‘Mais l’impossible, est-ce que c’est possible?’ asks Jacques Derrida (1999b, 141).

5. Blixen’s Difference: From Possession to Responsibility and Pleasure

The law does not expect persons who find themselves in an emergency situation to value the lives of others higher than their own. This was the reasoning of the South African Appellate Division in the case of State v Goliath 1972 when it justified the killing of another person to save one’s own life. This ultimate hierarchy between self and other seems to be inevitable. Its inevitability is the source of all economic competition.  It is the source of the feudal and the colonial.

To what extent can this hierarchy be resisted and who will be moved to do so?

Karin Blixen (1954, p13) wrote: ‘I had a farm in Africa’. She owned a farm in Africa in a context of undeniable colonialism, a colonialism from which we can hardly argue her to have been exempted. She was a European settler who used her land to produce coffee for a European market. She certainly aimed to do so for her own benefit. As is the case with all private legal subjects, as was also the case of Leopold II, she utilised what she owned for her own benefit. Why could one therefore nevertheless suggest that she gave a different meaning to the Leopoldian possession of a farm in Africa?

On the farm at the foot of the Ngong hills, or rather, at the foot of the Ngong hills, on land that later became Blixen’s farm, lived the Kikuyu people. When the land became Blixen’s, they continued to live there. Legally speaking, they continued to live there at her mercy. She had the right to evict them should she have pleased to do so. Yet, the relationship between her and the Kikuyu people was, at least psychologically speaking, a little more complicated than a common landlord-tenant relationship. The following passage close to the end of Out of Africa is quite significant in this regard. The coffee plantation had turned out to be a financial failure and she had had to sell the farm. The passage expresses her concern with the fate of the Kikuyu people subsequent to the transfer of the farm to the new owners:

‘The fate of my squatters weighed on my mind. As the people who had bought the farm were planning to take up the coffee-trees, and to have the land cut up and sold as building plots, they had no use for the squatters, and as soon as the deal was through, they had given them all six months’ notice to get off the farm. This to the squatters was an unforeseen and bewildering determination, for they had lived in the illusion that the land was theirs. Many of them had been born on the farm, and others had come there as small children with their fathers.
The Squatters knew that in order to stay on the land they had got to work for me one hundred and eighty days out of each year, for which they were paid twelve shillings for every thirty days; these accounts were kept at the office of the farm. They also knew that they must pay the hut-tax to the government, of twelve shillings to a hut, a heavy burden on a man, who with very little else in the world, would own two or three grass-huts - according to the number of his wives, for a Kikuyu husband must give each of his wives her own hut. My squatters had, from time to time, been threatened to be turned off the farm for an offence, so that they must in some way have felt that their position was not entirely unassailable. The hut-tax they much disliked, and when I collected it on the farm for the government, they gave me a great deal to do, and much talk to listen to. But they had still looked upon these things as common vicissitudes of life, and had never given up hope of somehow getting round them. They had not imagined that there might be, to them all, an underlying universal principle, which would at its own hour manifest itself in a fatal, crushing manner. For some time they chose to regard the decision of the new owners of the farm as a bugbear, which they could courageously ignore’ (Blixen, 1954, pp 317 -318, emphasis added).

She had the right to turn them off the farm and had often threatened to do so. Yet, they continued to live under the illusion that the land was theirs. She, like the hut-tax and the new owners, was looked upon as one of the common vicissitudes of life that one would have to face wherever one might live. She was for them like a natural difficulty that came with or came to the land they lived on. This woman who made them work for her and took money from them and often threatened to chase them away for reasons they probably did not understand, was akin to something like seasonal flooding that simply made life more difficult than it could have been, but did not alter the fact that the land was theirs to live on. One should also ask the question to what extent she lived on the farm at their mercy. As a woman who lived alone on the farm for long periods, her position was certainly ‘not unassailable’ either. Who was at the mercy of whom?

Albert Camus’ short story L’hôte deals with a French geography teacher in Algeria who gets saddled with the task to take an Arab prisoner to the closest police station. The teacher does not take the prisoner to the police station, but simply explains to him where it is and leaves it up to him to go there of his own accord. When he lets the prisoner go, his heart leaps in his throat, not knowing what the prisoner is going to do. After a while he notices that the Arab is indeed on his way to the police station. Again the colonial context. Again the relationship between the coloniser and the colonised. But again, a certain horizontality that makes it unclear who is at the mercy of whom, who is being hospitable to whom. Derrida (1999c, pp 117-120) comments on the story, noting Camus’ genius to consist in the way he maintains the ambiguity of the French word l’hôte which means both ‘host’ and ‘guest’ and thus leaves open the question as to who is the host and who is the guest. The story thus portrays a non-subjective hospitality that exists between the French teacher and the Arab prisoner and cannot be said to originate in either one of them. At issue is for Derrida a certain event of hospitality, a certain differential event that graciously lets both the teacher and the prisoner be.  For a moment at least, the hierarchical or vertical relation between the coloniser and the colonised is replaced or displaced by a horizontal relationship of mutual responsibility.

Can it not be argued that a similar displacement of the ubiquitous hierarchical coloniser-colonised relation takes place in Blixen’s narrative? Is there not ultimately a certain graciousness or hospitability, a certain acceptance of equality and absence of hierarchy, in the ownership that allows ‘squatters’ ‘the illusion that the land [is] theirs’? And is this ‘illusion’ that the land ‘is theirs’, not theirs ‘in ownership’, that is, not technically or legally speaking their ‘property’, but simply ‘theirs’ to live on in the face of the ‘common vicissitudes of life’ not more real than the fiction of private property through which legal subjectivity seeks to enjoy more security than is warranted to mortals? Does this illusion not relate to a Thomist regard for a reality of existence and common survival that transcends the legal fiction of private ownership? (Van der Walt, 2001a, pp 524, 532) And did Blixen not share with them this Thomist ‘illusion’ when she proceeded to take it on herself to see that the ‘squatters’ be provided with alternative land? Does this mutual ‘illusion’ not, at least, constitute a certain deferral of the seemingly inevitable identities of the possessor and the possessed? Does this deferral not allow for a remnant of difference between the self and the other and thus for a remnant of plurality?

Is there not, as Merleau-Ponty (1964, p 319) puts it, a certain dispossession to be thought here? Is there not at issue a certain paradoxical ‘belonging to both (everyone) and no one’ that Lefort would aver to exist at the heart of constitutional democracy? And is the dispossessing paradox to be grasped here not the heart of the political or the public that brings us together on a horizontal plane as more than one, a more-than-one that exceeds the ‘verticalising’ and unifying or plurality-destroying logic of possession, possession that is always feudal possession, possession that reduces the possessed to a non-other, to a mere extension of the self? Is the dispossessing paradox of the political that brings us together as more than one not that which makes us mutually responsible for each other’s well being? Would this mutual responsibility not prohibit the selling of expensive arms to a government that cannot afford to buy them? Would this mutual responsibility not require the government that nevertheless go ahead to buy these unaffordable arms to come and justify the purchase to its citizens, to come and explain why they seem to use what little wealth the people have as if it is theirs to do with as they please? And why should constitutional review and the application of fundamental rights not be invoked for purpose of this justification if the electoral process no longer seems to fulfil this function or will only be able to do so when it is much too late to repair the damage? It will soon become clear what the South African judiciary might think of this argument.

What about the conduct of Daimler-Benz? Can one take legal action against a company that manipulates the constitutionally guaranteed process of collective bargaining by threatening to simply leave the country when it does not get its way? Blixen had no option but to sell the farm and return to Europe after the failure of the coffee plantation. Yet, ‘[t]he fate of [her] squatters weighed on [her] mind’ when she had to leave and she took responsibility for this fate. Daimler-Benz’s conduct seems to be in stark contrast with this responsibility. The threat to pull out after a week-long strike appears to be informed by economic expedience, not economic necessity. It does not strike one as at all bothered by the fate of others. But can one take legal action against economic expedience? The law certainly cannot address all social and moral conflicts. Yet, the argument regarding the horizontal application of fundamental rights developed above would suggest that economic expedience be subjected to constitutional review when it threatens the fundamental rights of others. Can one legally force a company to continue to do business in a country? This is most doubtful. Can one threaten to expropriate their assets when they threaten to pull out? This appears to be more plausible. One can imagine, however, the disastrous impact such a threat would have on a country that appears to have staked its economic survival on foreign investment, foreign investment that clearly cannot yet be said to have broken out of the self-serving logic of feudalism or colonialism. How does one get out of this mess?

But why would one retreat from the feudal logic of possession and self-enrichment? What attraction could non-ownership and mutual responsibility for one another hold for us? This question should perhaps not be asked. Hospitality to and responsibility for one another simply attracts us. It befalls us like unexpected grace, Derrida (1999a, pp 151-152) tells us. The understanding of hospitality and responsibility in terms of an unexpected occurrence does not leave us powerless in the face of feudal possessiveness. The fact of its occurrence is exactly that which already informs the critical insight that feudalism is to be resisted. But this seems to leave us with the stark reality that some are visited by a gracious hospitality and responsibility and some are not. Unscrupulous arms dealers and reckless governments are not and that is that. Those who are visited by the grace of responsibility and hospitality must and will resist them and that is that. That is indeed that. However, a certain political activist, herself patently visited by a less graceful if not less gracious responsibility, will still sense an element of acquiescence here. She would want to invoke a truth with which the ungracious can be persuaded to become gracious. For her the question persists: What attraction could non-ownership and mutual responsibility hold for us? Why resist feudalism and colonialism? Deconstruction has become notorious for not wanting to invoke truths on which political action can be based and the Derridean notion of a responsibility that simply seems to befall or overcome us does not appear to go out of its way to prove the contrary. 

And what if deconstruction would attempt to make the politics of dispossession or the dispossession of the political attractive or persuasive by relating it loosely to pleasure, the simple dispossessed, dispossessing and therefore non-possessive pleasure of being and coming together as more than one, as citizens, as friends, as lovers? In Sidney Pollack’s 1986 cinema production of Out of Africa, Karin Blixen is portrayed to have said the following prayer at the grave of Denys Finch Hatton:

‘Take back the soul of Denys Finch Hatton whom You have shared with us. He gave us pleasure. We loved him well. He was not ours. He was not mine’.

6. Dispossession

Possession of another person, by means of the possession of land, is the essence of the fiefdom. ‘Leopold II., Louis Philippe Marie Victor (1835-1909), king of the Belgians, …was the virtual proprietor of the Congo Free State with its 30 millions of people….’ (Taylor, 1938, p 2943). Blixen’s ownership of a farm in Africa differed markedly from Leopold’s, but not absolutely so. The feudal character of her ownership is clear when one considers the reference to ‘my squatters’ in the passage from Out of Africa quoted above. The disconcerting aspect of this feudalism does not relate to the word ‘squatters’. It relates to the word ‘my’. In terms of the rhetoric of dispossession developed here, we are all ‘squatters’. The laws of humankind would perhaps have us think otherwise, but in terms of the ageless winds that sweep and re-arrange the patterns in the soil of the earth, our claims to property have no solid basis.

Our temporary claims to property and to others ultimately remain the brief endeavours of mortal squatters. Or pirates (Van der Walt, 2001a). However, mortality and the brevity of human life should be understood to constitute the ultimate guarantee for plurality. Death completes the resistance to the feudal possession of others that constitutional democracy and the principle of equal liberty of all before the law promise. Death annihilates the desperate hierarchies between selves and others that the law cannot avoid institutionalising in the course of the self-preserving lifetime of legal subjects. Death restores or brings into its own the horizontality of mortals that already begins with birth, but immediately gets displaced by legal property relations, that is, by the vested rights to property through which the newly born is turned into more or less powerful embodiments of legal subjectivity.

Constitutional review, understood in terms of the horizontal application of fundamental rights, resists the privatising reception of new life as an expression of legal subjectivity and the privatising extension of legal subjectivity in the course of a lifetime, be this the ‘public’ legal subjectivity of government officials or the private legal subjectivity of powerful business enterprises. Speaking strictly in terms of the law and the technicalities of law, the extensive understanding of the horizontal application of fundamental rights to pertain not only or not simply to the constitutional review of private legal subjectivity, but to the privatising strive of legal subjectivity as such, be it public or private legal subjectivity, can hardly expected to make a huge difference to legal practice as we know it. The argument developed here is therefore more political than legal. The understanding of the horizontal application of fundamental rights in terms of a resistance to feudal hierarchies and the feudal appropriation of the liberty of others, be it by government or the powerful princes of commerce, is an argument in favour of a radical understanding of democracy that has its roots in the fundamental horizontality of mortals, a horizontality that is itself rooted in time. What Lefort says of democracy, that it is government by everyone and no one, finds remarkable resonance in something that Heidegger says of time:

‘The accessibility of the present moment (the now) to everyone characterises time as public. The present moment gives everyone access, and therefore belongs to no one’.