Adjudicative subsidiarity, the "horizontality simpliciter" approach and personality rights: Outlining an integrated and constitutional reading strategy to the law of personality

Abstract

This article argues that an integrated and constitutional approach to the law of personality is required, as multiple sources of law are applicable to the conception and adjudication of personality rights and these sources must give effect to constitutional imperatives related to the human personality. This article further argues that such an integrated and constitutional approach ought to be premised on the principle of adjudicative subsidiarity and the "horizontality simpliciter" approach (as constitutional reading strategies). Each of these strategies functions at different levels in the law of personality and provides a particular method of integrating legal sources, constitutional values, and fundamental rights to private relationships. At the macro level, denoting the interaction between various sources of law, the principle of adjudicative subsidiarity is aimed at identifying and prioritising sources of law to adjudicate a dispute between private individuals. At the micro level, denoting the application of a legal source between individuals in a private relationship, the horizontality simpliciter approach facilitates the application of both constitutional values and fundamental rights to such a source through its "values.based" and "rights.based" analyses. This article argues ultimately that the principle of adjudicative subsidiarity and the horizontality simpliciter approach are complementary in nature in the sense that both these reading strategies locate a cause of action in a non.constitutional source that is constitutionally developed through the application of constitutional values and fundamental rights. This complementariness is expressed in the positive law as follows: the principle of adjudicative subsidiarity determines which source of law is applicable to the adjudication of a particular personality right infringement whereas the horizontality simpliciter guides the development of the applicable source against constitutional values and fundamental rights.