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Licensed Unlicensed Requires Authentication Published by De Gruyter March 22, 2022

Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic

  • Gabriel Ducatti Lino Machado EMAIL logo
From the journal ICL Journal

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.


Corresponding author: Gabriel Ducatti Lino Machado, Centre for Ethics and Law in the Life Sciences, Leibniz University Hannover, Germany, E-mail:

Published Online: 2022-03-22
Published in Print: 2022-09-27

© 2022 Walter de Gruyter GmbH, Berlin/Boston

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