Chapter

Rights, Interests, and Trumps

Matthias Klatt and Moritz Meister

in The Constitutional Structure of Proportionality

Published in print July 2012 | ISBN: 9780199662463
Published online September 2012 | e-ISBN: 9780191743405 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199662463.003.0003
Rights, Interests, and Trumps

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The second chapter addresses the issue of which objects are tested in the proportionality test. Reference is made to the debates on how rights, interests, and trumps differ from each other and what they have in common. Different models of rights construction are distinguished: the interest model, the strong trump model, the medium trump model, and the weak trump model. The models are discussed in detail as to their capability of ensuring effective rights protection, particularly as far as the protection of minorities is concerned. The chapter defends a weak trump model which combines trumping and balancing. It is demonstrated how principles theory can account for absolute rights. The analysis of absolute rights uses the weight formula and explicates this with the help of the Chahal case of the European Court of Human Rights and the Aviation Security Act case of the German Federal Constitutional Court.

Keywords: rights; interests; trumps; balancing; absolute rights; weight formula; European Court of Human Rights

Chapter.  13345 words. 

Subjects: Constitutional and Administrative Law

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