TY - JOUR

T1 - Health as a Purpose or as a Right

T2 - The Principle of Proportionality and the Measures Against the Covid-19 Pandemic

AU - Machado, Gabriel Ducatti Lino

PY - 2022/9/27

Y1 - 2022/9/27

N2 - The Covid-19 pandemic has given cause for serious restrictions of fundamental liberty rights. In the legal doctrine of fundamental rights, the classical tool for the assessment of the material constitutionality of interferences with fundamental rights is the principle of proportionality. Indeed, the material determinant of the principle of proportionality is the intensity of the intervention in the fundamental right. One preliminary question, however, is often underestimated: the question as to the constitutional status of the interests protected or promoted by the intervening measures. After outlining the structure of the principle of proportionality, this article investigates the constitutional status that the interests protected by Covid-19 measures might have: is the protection of people's health merely a legitimate purpose or a right? Finally, this article shows, with recourse to decisions of the German and Brazilian Constitutional Courts, the implications that different classifications have for the principle of proportionality.

AB - The Covid-19 pandemic has given cause for serious restrictions of fundamental liberty rights. In the legal doctrine of fundamental rights, the classical tool for the assessment of the material constitutionality of interferences with fundamental rights is the principle of proportionality. Indeed, the material determinant of the principle of proportionality is the intensity of the intervention in the fundamental right. One preliminary question, however, is often underestimated: the question as to the constitutional status of the interests protected or promoted by the intervening measures. After outlining the structure of the principle of proportionality, this article investigates the constitutional status that the interests protected by Covid-19 measures might have: is the protection of people's health merely a legitimate purpose or a right? Finally, this article shows, with recourse to decisions of the German and Brazilian Constitutional Courts, the implications that different classifications have for the principle of proportionality.

KW - Covid-19

KW - principle of proportionality

KW - fundamental right to health

KW - Germany

KW - Brazil

KW - constitutional reasoning

UR - http://www.scopus.com/inward/record.url?scp=85168594401&partnerID=8YFLogxK

U2 - 10.1515/icl-2021-0042

DO - 10.1515/icl-2021-0042

M3 - Article

VL - 16

SP - 353

EP - 373

JO - ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW

JF - ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW

SN - 2306-3734

IS - 3

ER -