About the Fair Balance of Competing Rights in the Context of the COVID-19 Pandemic

Georgeta Bianca Spîrchez, Nicolae Bârsan-Pipu

Abstract


The current pandemic situation gives us the opportunity of the following research, which is a plea to use the principle of proportionality as a rational argument in substantiating the restrictive measures adopted by the authorities in order to prevent the spread of Sars-CoV-2 virus. Thus, after (1) we found it appropriate to make general considerations related to governmental measures for public health and safety in the introductory part, we continued with (2) the presentation of the proportionality standard, as a jurisprudential model used both at national and international level, in order to develop (3) proportionality in a narrow sense afterwards, using the formula of professor Robert Alexy, which we consider representative for the structure of balancing competing rights, using a quantifiable model, in which respect we have exemplified the applicability of this formula (4). Finally, we concluded that the principle of proportionality can be a convincing structural approach in the legal reasoning designated to promote the balance of principles (6), although we acknowledge some of the limitations of the proposed method, which we consider that can be overcome (5).


Keywords


proportionality principle; law of balancing; weight formula; competing rights; pandemic; Sars-Cov-2.

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DOI: http://dx.doi.org/10.24193/tras.SI2020.7 Creative Commons License
Transylvanian Review of Administrative Sciences by TRAS is licensed under a Creative Commons Attribution 4.0 International License.
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