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  1. Authentic Interpretation.Timothy Endicott - 2020 - Ratio Juris 33 (1):6-23.
    I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early (...)
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  • Quarantines: Between Precaution and Necessity. A Look at COVID-19.Vera Lúcia Raposo - forthcoming - Public Health Ethics.
    The events surrounding COVID-19, combined with the mandatory quarantines widely imposed in Asia and Europe since the virus outbreak, have reignited discussion of the balance between individual rights and liberties and public health during epidemics and pandemics. This article analyses this issue from the perspectives of precaution and necessity. There is a difficult relationship between these two seemingly opposite principles, both of which are frequently invoked in this domain. Although the precautionary principle encourages the use of quarantines, including mandatory quarantines, (...)
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  • Balancing Rights and Interests: Reconstructing the Asymmetry Thesis.Matthias Klatt - forthcoming - Oxford Journal of Legal Studies.
    Dworkin, Schauer and others have argued that the last step of the proportionality test, ie balancing, is subject to a significant asymmetry. While we could balance interests against each other, we could not do so with rights, lest we destroy the unique normative status of rights. If this asymmetry exists, the applicability of balancing would be considerably limited. I analyse the asymmetry thesis and discuss its merits and weaknesses. I then demonstrate how we can accommodate the rationale behind the asymmetry (...)
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  • Vaccination Policies: Between Best and Basic Interests of the Child, Between Precaution and Proportionality.Roland Pierik - 2020 - Public Health Ethics 13 (2):201-214.
    How should liberal-democratic governments deal with emerging vaccination hesitancy when that leads to the resurgence of diseases that for decades were under control? This article argues that vaccination policies should be justified in terms of a proper weighing of the rights of children to be protected against vaccine-preventable diseases and the rights of parents to raise their children in ways that they see fit. The argument starts from the concept of the ‘best interests of the child involved’. The concept is (...)
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  • A Non-Positivistic Concept of Constitutional Rights.Robert Alexy - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):35-46.
    There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...)
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  • The Mythology of Proportionality in Judgments of the Court of Justice of the European Union on Internet and Fundamental Rights.Filippo Fontanelli - 2016 - Oxford Journal of Legal Studies 36 (3):630-660.
    Proportionality is the tool of choice for the EU Court of Justice’s review of measures affecting the enjoyment of fundamental rights. The use of proportionality is normally beneficial, as it ensures that public authorities pursue public policies without any avoidable waste of fundamental rights protection. In the field of internet-based activities, however, certain recurrent elements make proportionality unfit for the purpose. This article argues against the systematic recourse to the mythology of proportionality in the judgments of the Court of Justice (...)
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