| Popis: |
Proportionality is a technique of rights adjudication. As such, it relates to the question of whether a limitation of a right is justified. This chapter identifies different variations of the test of proportionality. It distinguishes between the meanings of proportionality from three different perspectives: the analytical, the doctrinal, and the institutional. The analytical one is concerned with the systematic and conceptual elucidation of the justification of rights restrictions. The doctrinal perspective relates to a descriptive activity and a normative one. The institutional perspective analyses the proportionality test in the frame of the tension between majoritarian democracies and courts. Different levels of judicial review are proposed depending on the type of right, the deliberative process played in the parliament, the consideration of the rights of the affected persons in the deliberation, the intensity of the restriction of the right, and so on. Therefore, different modes of proportionality arise in the field of rights review in each State of Latin America. |
