Standing in the shadows of balancing: Proportionality and the necessity test
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[1] Universidade de São Paulo
Universidade de São Paulo
Brasil
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- Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 20, Nº. 5, 2022, págs. 1738-1767
- Idioma: inglés
- Texto completo no disponible (Saber más ...)
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Resumen
The necessity test is one of the steps of the proportionality test. However, in the literature on the subject, written both by supporters as well as by critics of proportionality, the role of the necessity test has been frequently downplayed, sometimes plainly ignored. The spotlight has always been on balancing. This article shows that proportionality is not just about balancing, and that the necessity test has a much more important role to play than has been acknowledged so far. Its strengths are emphasized, especially its connection to politics, knowledge from other areas, time, and technological development. The article argues that shedding the appropriate light on these strengths has important implications for several ongoing debates around the proportionality test.
