Abdications of sovereignty in state action and horizontal effect jurisprudence

Attempts to come to terms with the deep tensions and paradoxes that inform the state action and horizontal effect jurisprudence are largely absent in the vast literature available today on this crucial subject. Attempts to come to terms with the conceptual difficulties that attach to the state action doctrine in the United States remain stuck between acceptances and rejections of an idea that one can, following Frank Michelman, call the “simple Hohfeldian point.”1 Michelman explains the simple Hohfeldian point in terms of the rather unproblematic recognition that the state is ultimately the author of all law, irrespective of whether this law comes in the form of legislation, common law or executive commands.2 But this is Michelman’s short hand statement of the Hohfeldian point. The expanded or full version of the Hohfeldian point would be this: The state is ultimately the author of all law, irrespective of whether this law comes in the form of legislation, common law or executive commands or the absence of legislation, common law or executive commands. This expanded version of the Hohfeldian point will be explained in Section I of this chapter. The vicissitudes of the state action doctrine in the United States are a function of judicial attitudes that either embrace or reject the Hohfeldian point. That this is so will be shown in Section II of this chapter with reference to both the shorthand and expanded version of the Hohfeldian point. Some American judicial decisions accept that state authorship of law also includes, alongside legislation, authorship of common law and authorship of judicial decisions. When they do, they implicitly also accept that state authorship of law includes the absence of legislation and common law (absence of judicial decisions does not constitute a plausible variation). Some judicial decisions, on the other hand, steadfastly deny that state authorship of law includes authorship of common law rules and judicial decisions. Those that do naturally also deny that authorship of law includes the absence of legislation and common law. A dominant trend in the history of horizontal effect jurisprudence in a number of significant jurisdictions outside the United States can be read in terms of a consistent endeavour to prevent importation of those elements of the American state action doctrine that represent a judicial endorsement of the Hohfeldian point. That this is so will be shown with reference to the Canadian and South African jurisdictions in Section III of this chapter. Section IV will also highlight the irony evident in the South African resistance to the Hohfeldian