An Argument for the Test of Proportionality in Concreto: Silenced Voices from the Margins to the Center

Clérico, Laura; Aldao, Martín

doi:10.1007/978-3-030-77321-2_9

Cited by 1 publication

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“…10 How the law should respond to these scenarios and, in particular, how the powers of the state should be regulated in the process, is a larger debate that we shall not engage in here. 11 We use the Croatian discussion on whether the pandemic is a "great natural disaster" provided for in the Constitution to argue that, beyond the apparently crude dichotomy between extra-legal facts and legal norms relied upon by some commentators, 12 the law draws upon and provides normative significance to some facts over others. This is the mechanism at the core of the state's response to the pandemic and is explored throughout the rest of the paper.…”

Section: Evaluating Facts Against Constitutional Lights: the Problemmentioning

confidence: 99%

Mapping the constitutional terrain of vulnerability in the COVID pandemic

Barić

Miloš

2022

Zb. Prav. fak. Sveuč. Rij. (Online)

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In this paper, we explore the underlying theory of the Croatian constitution in the response to the COVID outbreak. We argue that the operative issue imposed by the pandemic, at least in Croatian constitutionalist circles, was how facts should be related to constitutional values, structures, and norms. Although at first blush a replica of our general inability to get some bearing on a terrain of uncertainty in an unforeseen outbreak, we will explore the matter as a specific problem of constitutional theory, aiming to explore its implications for constitutional dimensions of vulnerability. To do so, we draw from the literature to describe the different ways constitutions may be imagined in relation to facts and then apply this insight to the measures enacted by the Croatian state during the COVID pandemic. The result is a treacherous terrain, where the exercise of state power and its restriction stand on thin constitutional grounds, excluding a spectrum of more substantive interpretations of the Constitution. In conclusion, we argue that this map reveals a narrowed basis for identifying and vindicating vulnerability.

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Section: Evaluating Facts Against Constitutional Lights: the Problemmentioning

confidence: 99%