Health as a Purpose or as a Right

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

authored by: Gabriel Ducatti Lino Machado
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.
Organisation(s): Centre for Ethics and Law in the Life Sciences
Type: Article
Journal: ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW
Volume: 16
Pages: 353-373
No. of pages: 21
ISSN: 2306-3734
Publication date: 27.09.2022
Publication status: Published
Peer reviewed: Yes
ASJC Scopus subject areas: Law
Electronic version(s): https://doi.org/10.1515/icl-2021-0042 (Access: Closed)

BibTeX

@article{b04b21cf83c449e9a542896f36ce949f,
title = "Health as a Purpose or as a Right: The Principle of Proportionality and the Measures Against the Covid-19 Pandemic",
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",
author = "Machado, {Gabriel Ducatti Lino}",
year = "2022",
month = sep,
day = "27",
doi = "10.1515/icl-2021-0042",
language = "English",
volume = "16",
pages = "353--373",
journal = "ICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW",
issn = "2306-3734",
publisher = "Walter de Gruyter GmbH",
number = "3",
}