Contemporary issues such as the COVID-19 pandemic and Big Tech offer opportunities to recapitulate and extend the book’s insights in this concluding chapter. More specifically, debates over public health and digital technology reveal the practical implications attending more theoretic inquiries about private actors’ status in constitutional politics. The weightiness of these issues thus supports increased urgency to study the position of private actors vis-à-vis the constitution and brings to the fore the particular value of the book’s republican framework in this enterprise. The republican framework may offer guidance regarding the contexts and goals to which horizontal application is suited, as well as the ways in which it may be further supported as a practical and a normative matter. By appreciating the ways in which horizontal application is republican, constitution-makers and courts might shore up this practice by taking steps to make it even more republican. This may come through renewed emphasis on the legislative function or contestation more generally in constitutional politics.

The rise of the European Union elicits both theoretical and practical questions about notions of citizenship, and citizens’ duties, that transcend nation-state boundaries. Indeed, its supranational nature invites reevaluation of the concepts of citizenship and political community more generally. In a similar vein, this chapter considers the European Court of Justice’s (ECJ) practice of horizontal application in light of republican theory. The fact that the ECJ has introduced horizontal application in EU law at all is itself a point of interest, given the debatable status of the Union as a political community in the republican sense. This book’s republican framework points toward a conceptual relationship between the development of horizontal application and the fate of the European Union as, in fact, something more than a loose union of nation-states. Put differently, a full flowering of horizontal application is theoretically tied to wider acceptance of the European Union as a fully fledged political community, complete with citizens’ duties to one another and a common good of which to speak.

Citing contemporary issues, this introduction situates horizontal application as one potential response to political-legal questions involving private actors. It makes the case for renewed scholarly attention to horizontal application as an increasingly common practice in constitutional politics. More specifically, examining horizontal application through the lens of republican political theory uncovers new significance in the discourses surrounding this constitutional practice. This theoretical perspective also elucidates how horizontal application is different from traditional constitutional understandings. After introducing the book’s republican framework, Chapter 1 explains the rationale underlying the choice of contexts examined in subsequent chapters. It concludes with an explanation of the stakes, as well as the potential benefits and drawbacks of horizontal application considered in the following chapters. Finally, it previews the concluding chapter’s argument that horizontal application may be further supported with certain political and institutional adjustments to make this practice even more republican.

The framers of the Indian Constitution laid explicit foundation for horizontal application, specifically in Articles 15, 17, 23, and 24. The constitutional debates reveal deep disagreements about the country’s future. At the same time, the textual provisions for horizontal application evince a clear vision on the part of key framers, such as B. R. Ambedkar and Jawaharlal Nehru, to combat entrenched systems of caste and discrimination. These and other framers aimed to instill a new fraternity across the polity, in part by holding private actors accountable for constitutional commitments. In the ensuing years, the Supreme Court vacillated between emphasizing the constitution’s conservative and transformative elements, often under the watchful eye of other governing institutions. For example, the Court largely yielded to Indira Gandhi’s excesses during the Emergency Era of the 1970s, and later to the Hindu-nationalist BJP’s agenda. Likewise, the Court’s development of horizontal application has been somewhat uneven, applying constitutional duties to private actors in a handful of cases. In those instances, involving such salient issues as labor, sexual assault, housing, and education, the constitutional discourses that emerge echo republican rationales from the founding era.

While the traditional vertical understanding of rights remains rooted in an older liberalism, the horizontal model possesses affinities with republican thought. This chapter makes these connections between constitutional practice and some of the core texts in the history of political thought. In addition to different understandings of the relationship between spheres, or the individual and community, liberal and republican thought generally conceive of liberty differently, a distinction that also maps onto the vertical and horizontal models in important ways. Rights in a horizontal understanding take on a new significance as more than mere rights, but ends as well, that potentially implicate the polity as a whole. Thus, horizontal application gives rise to new calls for parity between public and private spaces, which, in turn, amounts to a new source for understanding the duties of private actors. Such concepts as the common good and duty, integral to republican thought, come to the fore and offer a baseline for conceptualizing the parity and duties to which horizontal application gives rise. The chapter illustrates how these republican concepts occur in the context of actual cases and larger constitutional discourses, drawing examples from Germany, India, and South Africa.

Chapter 3 focuses on the kinds of domestic duties expected of women in gentle, noble, and royal establishments and thus offers an understanding of everyday life in a late medieval elite household. The range of activities required of highborn household servants was broad, encompassing both public and private obligations. They saw to their queens’ or noblewomen’s personal needs in terms of apparel, entertainment, and piety. They traveled when duties demanded it and assisted their queens and ladies with medical care. To perform these tasks, they were entrusted with significant household resources and also, sometimes, care and custody of royal and noble children. Over years of service, through daily serving the needs of their employers, some serving women and their mistresses developed affectionate relationships as they shared literary tastes and devotional practices. Their employment provided opportunities for elite female servants to live a sumptuous lifestyle surrounded by luxury and entertainments, and also to network with other courtiers. I argue that investigating the domestic duties and daily lives of these often-overlooked women completes our understanding of courts and great households by showing the importance of female employment in the Middle Ages.

More salient in the era of Covid-19, the question of physicians’ obligations to safeguard the health of non-patients continually vexes courts, scholars, and policymakers. Physicians’ public health duties are confoundingly elusive. Elusive in the sense that while at times affirming physicians’ special capacity and obligations to improve the health of the community, the law more often obscures physicians’ public health duties with ad hoc recognition and insufficient theorization. These public health duties also are elusive in actual application. Physicians can point to individual patient duties as reasons to evade compliance with certain public health laws or to discount public health considerations in clinical decision-making. As a matter of health policy, the law’s directive to “put patients first” has underappreciated costs. It frequently overrides physicians’ more elusive public health duties in ways that facilitate externalization of health risks to the public. This paper analyzes the Covid-19 pandemic, antibiotic resistance, infectious disease reporting, the opioid crisis, and gun violence as disturbing examples. Amplifying physicians’ public health duties to require that they pay greater heed to the population’s health, even to the detriment of doing all possible for their individual patients, seems unavoidably necessary. The nation’s public health system largely depends upon non-governmental actors, and private physicians are at the center of this public/private response. The private physician occupies a unique strategic role embedded between her patient, other patients, and society and performs critical sentinel, gatekeeper, and learned intermediary functions that are indispensable to effective public health protection.

The pressure to collect more health data and use that data more effectively is mounting as healthcare systems face greater challenges. However, the risks of increasing health data collection and making our health data work harder are myriad. Given that ‘good outcomes’ in relation to health data usage will be context specific and temporally contingent, the emphasis here is on fit-for-purpose instruments and good practice, acknowledging that health data usage is mediated not only through law, but also through governance structures around data resources themselves. This chapter therefore reviews the Canadian health data ecosystem, examining its federal and provincial legislative elements (with an emphasis on Nova Scotia). It then critiques that ecosystem, bearing in mind the needs of learning healthcare systems. In doing so, it highlights four ecosystem shortcomings, which are grounded in no small part on the perceived competition between private and public interests, and the poor alignment between contemporary data uses and traditional protections associated with autonomy (consent) and privacy (anonymisation). Finally, it offers some key considerations for ecosystem design, addressing specifically social license to operate and the value foundation of both legislation and repository governance instruments.

Many jurisdictions require lawyers to advise clients about mediation. As gatekeepers of the process, lawyers have duties to fulfil before the mediation starts, during the process and when it ends. There are ethical considerations that mediators must consider and potential legal liability to bear in mind. While it is important to distinguish between acting as a lawyer and as a mediator to ensure there is no conflict of roles, the two roles can also have a symbiotic relationship. Observing the work of lawyers in mediation from a detached perspective is beneficial, as opportunities arise to see behaviours that are counter-productive and behaviours that are constructive. This acquaints a lawyer with a variety of ways to respond to difficult behaviours by clients or opposing counsel that can help in meeting the parties’ substantive needs. Mediation has been instrumental in the emergence of the ‘new lawyer’ – a professional who has a greater focus on the potential for interest-based bargaining and problem solving, and accepts the value of non-legal solutions to legal problems. The flexibility of the mediation process can also facilitate expert involvement in a non-adversarial way.

In Chapter 3 – The Social Construction of the Individual Human Being – A Conceptual and a Theoretical Framework – I develop and employ a conceptual and theoretical framework based on feminist and critical constructivist IR approaches and approaches from International Law. To this end, the chapter brings together building blocks drawn from these approaches: gender and body, norms and language, participants and positions, rights and duties, and human rights. The chapter demonstrates the advancement the framework makes possible. Furthermore, it provides evidence for the value each of the approaches and concepts adds to the frameworks and the analysis.

A presentation of the concluding remarks and main submissions on the issues discussed in Chapters 1 to 6 of the book.

Chapter 7 recapitulates how Chapters 3 to 6 demonstrate that charity controllers are subject to a range of duties and mechanisms that ensure some regard be given to both present and future potential benefit recipients but that those duties and mechanisms largely lack a normative benchmark, such as intergenerational justice, to determine the timing of benefit distribution. Chapter 7 thus examines whether intergenerational justice could act as a normative basis for charity controllers’ choices about how to allocate benefits between current and future generations. It also considers the role that efficiency might play in such decision-making. The chapter then investigates the practicalities of attempting to incorporate principles of intergenerational justice into rules that constrain charity accumulation. Both general issues of practicality and specific reform options are considered. The aim is to better incorporate a normative basis for benefit distribution while at the same time protecting the potential benefits from accumulation and retaining consistency with the goals of charity law. Examples are drawn from the United States, Australia, Canada and the United Kingdom.

This chapter examines whether there are meaningful differences between human rights and humanitarianism in terms of perfect and imperfect duties, and concludes that this is a false parallel and that increasingly humanitarianism and human rights are blurring the distinction between the two in terms of their practices.