The principle of proportionality in contexts of uncertainty

Shortcomings and potential solutions in light of COVID-19

Authors

  • Borja Sánchez Barroso Universidad Católica de Valencia San Vicente Mártir

DOI:

https://doi.org/10.18042/cepc/redc.128.02

Abstract

The principle of proportionality is considered the main legal tool in order to control restrictive measures of rights, both in ordinary Courts and at a constitutional level. In addition to its general limitations, new shortcomings have arisen during the pandemic, which question the efficacy of the principle in situations of factual uncertainty, especially in highly technical o scientifically complex contexts. This article analyses this problem in-depth and exemplifies it with specific measures adopted to prevent COVID-19. It also analyses potential ways to counter the aforementioned shortcomings, such as refining the principle of proportionality itself, reinforce 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.

Published

2023-09-21

Issue

Section

STUDIES