Jump to ContentJump to Main Navigation
The Constitutional Structure of Proportionality$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

Positive Rights and Proportionality Analysis

Positive Rights and Proportionality Analysis

Chapter:
(p.85) 5 Positive Rights and Proportionality Analysis
Source:
The Constitutional Structure of Proportionality
Author(s):

Matthias Klatt

Moritz Meister

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199662463.003.0006

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

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .