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This chapter picks up the story where the previous chapter left off, showing how the Supreme Court of Canada initially made a show of rejecting the application of the Charter of Rights and Freedoms to private law relationships in Dolphin Delivery. But at the same time, the Court left itself room to interpret the common law to comport with Charter values. In the years since, litigants have pressed the Court to use this power to meet their normative demands, and the Court has done so on many occasions. At the same time, the Court has showed solicitude for legislative initiatives, often using the Charter to shape private-party obligations to one other only after the legislature has taken some rights-protective action in that area, in a strategy that might be called caboose constitutionalism.

This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After having analysed how the horizontal effect of national and EU fundamental rights works and which policy goals it serves, this chapter attempts to answer the question whether this use of fundamental rights is legitimate and desirable. This question is looked at from the background of a normative-individualistic understanding of fundamental rights. The analytical part of this chapter includes the proposition of a new doctrine: the double indirect horizontal effect of fundamental rights. This could help the Court of Justice develop its jurisprudence towards a better consideration of the non-economic human interests protected by EU fundamental rights. This chapter comes to the conclusion that, in applying fundamental rights horizontally, both the Court of Justice and the national courts seem to regularly give preference to certain societal policies over others. However, this does not mean that fundamental rights are instrumentalized. On the contrary, in the analysed cases, the pursuit of societal policies goes hand in hand with the strengthening of the basic interests of all individuals directly concerned. This confirms the normative-individualistic paradigm.