Proportionality Test and Constitutional Social Rights Adjudication
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Keywords

proportionality test
constitutional social rights
theory of judicial adjudication

How to Cite

De Fazio, F. (2020). Proportionality Test and Constitutional Social Rights Adjudication. Isonomía - Revista de Teoría y Filosofía del Derecho, (51). https://doi.org/10.5347/isonomia.v0i51.229

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Abstract
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Abstract

The aim of this article is to reconstruct in a rational way the use of the proportionality test in contexts of constitutional social rights adjudication. Such a reconstruction will be developed in two steps. Firstly, I will address the question as to whether proportionality test in its “by omission” version (i.e. used to apply positive rights) shows or not a different structure in comparison with its, much better known and investigated, “by excess” version (i.e., used to apply negative rights). Secondly, I will describe the rules and forms of reasoning that are implied in the use of proportionality test by omission and integrate, respectively, the sub-tests of suitability, necessity and proportionality stricto sensu. Finally, I will present a brief summary as a conclusion.