Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty
The principle of proportionality is considered the main legal tool to control restrictive measures of rights, both in ordinary courts and at a constitutional level. In addition to its general limitations, new shortcomings of the principle have played a central role during the pandemic, questioning t...
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| Format: | Article |
| Language: | English |
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Scandinavian University Press
2023-04-01
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| Series: | Oslo Law Review |
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| Online Access: | https://www.idunn.no/doi/10.18261/olr.9.2.1 |
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| _version_ | 1849685336534286336 |
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| author | Borja Sánchez Barroso |
| author_facet | Borja Sánchez Barroso |
| author_sort | Borja Sánchez Barroso |
| collection | DOAJ |
| description | The principle of proportionality is considered the main legal tool to control restrictive measures of rights, both in ordinary courts and at a constitutional level. In addition to its general limitations, new shortcomings of the principle have played a central role during the pandemic, questioning the principleʼs efficacy in situations of factual uncertainty, especially in technically or scientifically complex contexts. This article analyses this efficacy problem and exemplifies it with specific measures adopted to prevent COVID-19. It also analyses potential ways to counter those shortcomings, such as refining the principle itself, emphasising judicial deference to legislative and executive powers, or adopting prior decisions as to the information that must be taken into account in case of uncertainty. Finally, the article proposes some additional checks that could complement the culture of justification promoted by the principle and strengthen the control of public powers when restricting rights under conditions of uncertainty. |
| format | Article |
| id | doaj-art-c3660025206e4b15ad86e9fe810eaf05 |
| institution | DOAJ |
| issn | 2387-3299 |
| language | English |
| publishDate | 2023-04-01 |
| publisher | Scandinavian University Press |
| record_format | Article |
| series | Oslo Law Review |
| spelling | doaj-art-c3660025206e4b15ad86e9fe810eaf052025-08-20T03:23:11ZengScandinavian University PressOslo Law Review2387-32992023-04-0192749110.18261/olr.9.2.1Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual UncertaintyBorja Sánchez Barroso0Universidad Católica de Valencia San Vicente MártirThe principle of proportionality is considered the main legal tool to control restrictive measures of rights, both in ordinary courts and at a constitutional level. In addition to its general limitations, new shortcomings of the principle have played a central role during the pandemic, questioning the principleʼs efficacy in situations of factual uncertainty, especially in technically or scientifically complex contexts. This article analyses this efficacy problem and exemplifies it with specific measures adopted to prevent COVID-19. It also analyses potential ways to counter those shortcomings, such as refining the principle itself, emphasising judicial deference to legislative and executive powers, or adopting prior decisions as to the information that must be taken into account in case of uncertainty. Finally, the article proposes some additional checks that could complement the culture of justification promoted by the principle and strengthen the control of public powers when restricting rights under conditions of uncertainty.https://www.idunn.no/doi/10.18261/olr.9.2.1ProportionalityFundamental RightsScientific Uncertainty |
| spellingShingle | Borja Sánchez Barroso Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty Oslo Law Review Proportionality Fundamental Rights Scientific Uncertainty |
| title | Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty |
| title_full | Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty |
| title_fullStr | Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty |
| title_full_unstemmed | Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty |
| title_short | Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty |
| title_sort | beyond the principle of proportionality controlling the restriction of rights under factual uncertainty |
| topic | Proportionality Fundamental Rights Scientific Uncertainty |
| url | https://www.idunn.no/doi/10.18261/olr.9.2.1 |
| work_keys_str_mv | AT borjasanchezbarroso beyondtheprincipleofproportionalitycontrollingtherestrictionofrightsunderfactualuncertainty |