A Communicative Theory of Horizontality for Constitutional Rights: More than the Privatisation of Public Law?

Can I host an all-female dinner in my flat? Can I make a room in my flat available to female tenants only? Can I pay female workers less than male workers? This paper aims to identify to what extent constitutional law should be concerned with such questions, as well as if it should supply the relevant method for resolving them. There is a terse relationship between the idea of horizontality (the application of constitutional rights to disputes between private parties) and the identity of constitutional rights as public law claims regulating the process of governing (Loughlin 2003). Horizontal extensions of rights are normally justified by reference to dignity or globalization (Clapham 2006; Teubner 2012). This paper advances an alternative approach. It argues that an internally coherent theory of horizontality for democratic constitutions can be based on a single jurisdictional test of equal access to the public sphere, understood not through a spatial but through a communicative lens.