Proportionality in Constitutional and Human Rights Interpretation

Problema. Anuario de Filosofía y Teoría del Derecho, No. 7, 2013, pp. 83-113

Georgetown Public Law Research Paper No. 13-005

33 Pages Posted: 1 Feb 2013 Last revised: 28 Oct 2015

See all articles by Imer B. Flores

Imer B. Flores

Instituto de Investigaciones Juridicas, Universidad Nacional Autonoma de Mexico (UNAM)

Date Written: 2013

Abstract

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer to such objections and to reject them, as well as to reinforce the importance of this development, the author: first, revisits the constitution of principles and of the principle of proportionality, which per definitio contradicts each one of this objections; and, then, restates the constitution of the principle of proportionality as a principle of principles not only in constitutional and human rights interpretation but also in legislation, including constitutional reformation, and adjudication.

Keywords: Interpretation, Principles, Proportionality, Rights

JEL Classification: K00, K33, K39

Suggested Citation

Flores, Imer B., Proportionality in Constitutional and Human Rights Interpretation (2013). Problema. Anuario de Filosofía y Teoría del Derecho, No. 7, 2013, pp. 83-113, Georgetown Public Law Research Paper No. 13-005, Available at SSRN: https://ssrn.com/abstract=2210145

Imer B. Flores (Contact Author)

Instituto de Investigaciones Juridicas, Universidad Nacional Autonoma de Mexico (UNAM) ( email )

Circuito Maestro Mario de la Cueva s/n,
Cd. Universitaria
Mexico City, D.F. 04510
Mexico
525556227474x1304 (Phone)
525556652193 (Fax)

HOME PAGE: http://www.juridicas.unam.mx/invest/directorio/investigador.htm?p=imer

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