Abstract
The relationship between balancing and proportionality has not always been clear. Because part of the literature falls short of adequately differentiating between the two tools, many people ...have become conditioned to see an instance of proportionality whenever the word ‘balancing’ is dropped. As a consequence, the ubiquity of balancing brought about the feeling that proportionality is equally ubiquitous. In this article, I show that the proportionality test is necessarily linked to judicial review and how this link is key to understanding why not every instance of balancing is part of the proportionality test and that proportionality cannot be as ubiquitous as many have claimed. This has not only analytical relevance, but also institutional consequences.
El presente artículo da cuenta de un análisis histórico, social, político y jurídico sobre la existencia de un conjunto de elementos que posibilitan el surgimiento, el alcance y la aplicación del ...principio de convencionalidad como herramienta jurídica y constitucional de raigambre internacional que, para el caso colombiano, nace de una nueva realidad política (Estado Social de Derecho); y como mecanismo de aplicación, producto de la existencia de la Constitución nacional, la aprobación y ratificación de los tratados internacionales en materia de derechos humanos, de la importancia imperativa de los principios como reglas de base y de la participación jurisdiccional; todo lo anterior para la protección del derecho humano al asilo político en Colombia, como de aquellos derechos de igual categoría. Resultado que se consigue a partir de una investigación cualitativa, bajo un método deductivo e inductivo, a partir de una metodología y análisis de contenido que se realiza a través de una descripción explicativa, comparativa y de observación empírica y analítica.
Este trabajo intenta responder a la pregunta de cuál es el lugar –si acaso hay alguno– que el sentido común de los juristas ocupa en la teoría alexyana de los principios formales, particularmente, ...respecto de la presunción de constitucionalidad de la ley. La respuesta es que (i) la teoría de Alexy capta los aspectos nucleares de ese sentido común, inclusive (ii) contribuye a refinar algunos aspectos del mismo, sin embargo, (iii) todo lo anterior se oscurece si en el análisis se incluye a la fórmula del peso interpretándola como el reflejo exacto de la teoría alexyana.
This article proposes three tests for proportionality hypotheses regrading high-dimensional covariance matrices. Compared with currently available tests in the literature that fail in situations ...involving a “large p small n” or require knowledge of the underlying normal distributions, these tests are nonparametric, and do not require specifying any known distribution to derive asymptotic distributions under both the null hypothesis as well as an alternative hypothesis. The theoretical justification for the proposed tests is provided to ensure their validity, especially when the number of dimensions p is larger than the sample size n. Numerical studies show that the proposed tests are adaptively powerful against dense as well as sparse alternatives for a wide range of dimensions and sample sizes. The tests were used to analyze a gene expression dataset to verify their effectiveness.
While the concept of human-centric artificial intelligence (AI) has emerged as a key principle to govern AI systems, two obstacles for its implementation remain largely understated. First, the ...excessive focus on accountability at the design stage of AI systems, overshadowing the fact that human values can be affected at different stages across the AI life cycle. Second, the market-driven approach of current regulatory initiatives, limited in their ability to actively promote human values. In this article, we argue for a twofold approach to tackle these limitations. On one hand, we propose a co-evolutionary and life cycle approach to tackle the lack of accountability of AI systems, showing that this approach can help ensure accountability beyond the design stage by enabling meaningful human control and human-AI interaction across the entire lifecycle of the system. On the other hand, we propose that regulatory initiatives should balance the market-driven approach by giving a more predominant role to human rights and by introducing explicitly the notion of proportionality test. This rebalancing would serve to handle conflicts between the objectives pursued by AI systems circulating in the markets and the need for an effective protection of human rights.
Due to the covid-19 pandemic, some of the most important human rights and freedoms were restricted in many countries, so the question of balance between guaranteed rights and public health protection ...arises. The paper consists of three parts. The first part discusses the doctrinal positions on the proportionality test, the second part is devoted to the proportionality test in the practice of the European Court of Human Rights, while the third part is devoted to the proportionality test in the decisions of the constitutional courts of Germany and Bosnia and Herzegovina. Due to the importance of rights and freedoms in every state, as a barrier to the arbitrariness of state power, the importance of considering this topic is obvious. Dogmatic and comparative law methods will be used to examine the following hypothesis: the limitation of human rights is justified only to the extent that it is necessary for the protection of public health.
The purpose of the work is to define the role of proportionality as a tool for overcoming legal uncertainty in the application by courts of the principles and norms of law in modern civil ...proceedings. It was supported the statement that within the limits of modern legal understanding, different from the objective or subjective determination of legal phenomena, which were traditionally characteristic of the national legal doctrine, the understanding of principles is not limited to the properties of technical means for constructing norms or means of overcoming gaps in legal regulation. The principles of law determine the purpose, possibility, regime and limits of law enforcement.
Based on intersubjective legal understanding, an instrumental approach has been applied to the analysis of principles in law, their role and significance for the implementation of civil justice, primarily for those legal situations in which the procedure for carrying out proceedings is determined discretionarily. The position regarding the separation of written and unwritten, as well as structural and ideological principles has been supported. It has been concluded that the hierarchy of values in society determines the hierarchy and content of principles in law, namely: basic (fundamental, primary) principles of law and legal (general, inter-branch, branch) principles.
The impracticality of assessing the effectiveness of civil proceedings only through the implementation of the protective function (due to effectiveness) has been emphasized and it has been suggested to pay attention to such a category as the balance of interests implemented in civil proceedings. It has been concluded that fair is justice, which guarantees a balanced, necessity-based limitation of opportunities in the realization of procedural and legal interests, in the exercise of rights, as well as compliance with the procedure established by law, which is a reflection of public interests in legal security.
It has been emphasized that proportionality is an instrumental principle that allows to ensure legal discourse, which is a means of achieving a balanced legal and social result, which is connected with ensuring the rule of law during the exercise of power. The decisive factor in the application of proportionality is the reflection by the subject of law enforcement of his/her understanding of the law, as well as his/her own good faith. The application of proportionality in the version of the test, in which the procedure for solving the case (committing a procedural action) is based on a factual (pragmatic) approach in combination with a procedural institutional approach, allows the application of relatively defined legal norms, in relation to which the rules of deontic logic do not apply.
The purpose of this Case Note is to analyse the latest judgment of the Court of Justice related to Article 17(1) TFEU – the Freikirche case. After providing the key facts and the reasoning of the ...Court, the note outlines the common features and differences of the case with the previous case law related to this provision. The author claims that while the Court in the Freikirche case recognizes the protective effect of Article 17(1) TFEU, it implicitly creates potential to examine other national recognition systems of churches. In the author’s view, in cases of a more restrictive national systems than the Austrian one, this provision should be used as a part of the proportionality analysis to balance the restrictions against the potential impact on the status of churches under national law and their autonomy. In the author’s view, this would be the consequence of the protective effect of this provision, which may be perceived as the European Wall of Separation between the EU on one hand, and the status of churches under national law and the autonomy of churches on the other hand.
This article aims to critically aboard the criminalization of illicit enrichment in Brazil, taking as a starting point the typical description proposed in the Law proyect 4850/2016, currently in ...legislative process, and subjecting it to constitutional trial of proportionality and the theory of “legally protected interest”, in order to scrutinize the legitimacy of a criminalization in the proposed molds. For this, the study that concerns us here is divided into two large parts. In the first one, we try to contextualize the problem, presenting the origin and the justification of the Law Project 4850/2016, as well as the proposed wording for the criminal type. In the second, it deepens profusely in the arguments against its criminalization. This section, for methodological reasons, was subdivided into two groups: the transcendent arguments and the arguments immanent to the Brazilian legal system. In this way, the first subsection focuses on examining the foundations of the criminalization of illicit enrichment based on foreign legislative experience, seeking to understand the obstacles faced and the possible solutions put forward with special attention to the lessons learned. they come from the Portuguese case. Subsequently, it goes on to consider the objections of a constitutional and criminal dogmatic nature, specifically within the Brazilian legal order. The discussion implies, therefore, the examination of the legislative proposal from the constitutional point of view, according to the proportionality test. In a second moment, we continue with the analysis of the legitimacy of criminalization in light of the theory of the legal right, questioning what would be the material basis of the crime, assuming that the criminal type is approved in the terms and contours raised in the Law proyect 4850/2016. Finally, it is concluded that it is not feasible to legitimize and legitimize the classification of illicit enrichment in Brazil as long as the description suggested in legal instrument is maintained.
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