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13 - Proportionality, Social Justice and Democracy

from Part III - Proportionality, between Transformation and the Status Quo

Published online by Cambridge University Press:  27 October 2022

Francisca Pou-Giménez
Affiliation:
Institute for Legal Research, Universidad Nacional Autónoma de México
Laura Clérico
Affiliation:
Universidad de Buenos Aires, Argentina
Esteban Restrepo-Saldarriaga
Affiliation:
Universidad de los Andes, Colombia
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Summary

The proportionality exam as developed by the German Constitutional Court expresses the idea that constitutional rights cannot be overruled neither by other constitutional rights nor public interests. Instead, colliding rights and public interests should be satisfied as factually and legally possible. The chapter defends that the integrated proportionality test, which analyzes suitability, necessity and proportionality in its narrow sense, while including a modulation of the intensity of the scrutiny, may become a powerful adjudication device. It allows for a nuanced implementation of the three subprinciples of the proportionality exam, enabling courts to level the ground for disadvantaged groups. To show the usefulness of the modulated exam in dealing with structural inequality in Latin America, two cases involving political rights decided by the Inter-American Court of Human Rights (Castañeda Gutman and Yatama v. Nicaragua) are examined.

Type
Chapter
Information
Proportionality and Transformation
Theory and Practice from Latin America
, pp. 278 - 288
Publisher: Cambridge University Press
Print publication year: 2022

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