Details
| Original language | English |
|---|---|
| Pages (from-to) | 353-373 |
| Number of pages | 21 |
| Journal | ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW |
| Volume | 16 |
| Issue number | 3 |
| Early online date | 22 Mar 2022 |
| Publication status | Published - 27 Sept 2022 |
Abstract
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.
Keywords
- Covid-19, principle of proportionality, fundamental right to health, Germany, Brazil, constitutional reasoning
ASJC Scopus subject areas
- Social Sciences(all)
- Law
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In: ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW, Vol. 16, No. 3, 27.09.2022, p. 353-373.
Research output: Contribution to journal › Article › Research › peer review
}
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 -