Constitutional Rights and Proportionality
Revus - Journal for Constitutional Theory and Philosophy of Law (2014) 22. 51-65
17 Pages Posted: 21 Apr 2014 Last revised: 11 Jul 2014
Date Written: April 19, 2014
There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis.
Keywords: principles theory, proportionality analysis, constitutional rights, necessary connection, human rights, dual nature
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