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The Constitutional Structure of Proportionality$
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Matthias Klatt and Moritz Meister

Print publication date: 2012

Print ISBN-13: 9780199662463

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199662463.001.0001

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Positive Rights and Proportionality Analysis

Positive Rights and Proportionality Analysis

(p.85) 5 Positive Rights and Proportionality Analysis
The Constitutional Structure of Proportionality

Matthias Klatt

Moritz Meister

Oxford University Press

The special role of positive rights is widely recognized in constitutional scholarship, but the consequences in detail for both proportionality analysis and balancing are often unclear or neglected. This chapter demonstrates in detail how proportionality analysis works if a positive right is at stake. It is explicated that there are certain differences as to proportionality and balancing in negative rights, following the logical difference between a disjunctive and a conjunctive structure. The European Court of Human Rights’ decision in Hatton is used as an example. Different types of margin of appreciation relevant to positive rights are distinguished.

Keywords:   positive rights, European Court of Human Rights, margin of appreciation, disjunctive structure, conjunctive structure

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