Proportionality in social rights adjudication: making it workable

CLÉRICO LAURA

Lisboa

Workshop; I Lisbon Meeting on Legal Theory ? The principle of proportionality; 2017

Facultad de Derecho, Universidad de Lisboa

In the first section I present the developments of proportionality analysis by adjudicating positive rights. For sure there are differences among the scholars who claim that state that proportionality applies to positive rights. This, however, cannot be an argument against proportionality in this domain. Hence, there are also strong differences among the proponents of proportionality when adjudicating negative rights. What is most important is whether proportionality could help to reconstruct Court decisions about social rights. Presenting proportionality using judgments of Latin American Courts helps me to highlight two points. First, the standard proportionality test works as analytical framework to better explain what the Courts are doing (or not) by adjudicating social rights. Second, the modifications of proportionality should not concern radically the analytical level but tye doctrinal and institutional perspective from which proportionality is also used to be discussed.