Publication | Book Chapter

Theory and Philosophy of Law

Gains and losses in balancing social rights

Book title / Magazine:
Proportionality in Law: An Analytical Perspective
External Author(s):
David Duarte
LPL Editor(s):
Jorge Silva Sampaio
External Editor(s):
David Duarte
Within the scope of the Project:
Lisbon Legal Theory
Research Areas:
Theory of Law
Bibliographic reference:
Duarte, D. (2018). Gains and Losses in Balancing Social Rights. In: Duarte, D., Silva Sampaio, J. (eds) Proportionality in Law.
Research Group(s):
Theory and Philosophy of Law
978-3-319-89647-2
Publishing company: Spinger
Ano: 2018

Synopsis

Considering that proportionality also defines the conditions for a prevalence between norms within a balancing, specifically through the two laws of balancing, the paper contraposes the balancing schemes with a norm conferring a liberty and with a norm conferring a social right. The main claims underlying that contraposition is that both balancing schemes convoke similar sequential proportionality tests and that proportionality is applicable in the same way. The paper also analyses cases of underinclusiveness in social rights, sustaining that they are not a matter of unsuitability, but, differently, a matter of proportionality in the narrow sense.

Lisbon Public Law Research Centre

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