Proportionality, Evidence and the COVID-19-Jurisprudence in Germany

Abstract

AbstractWhat is proportionate? The measures taken worldwide to contain SARS-CoV-2 deeply curtailed the fundamental rights of many citizens. The courts have upheld this course of containment: the protection of life and health takes precedence over individual liberties, even in the case of doubt about scientific evidence for the effectiveness of far-reaching measures. This finding is astonishing and does not automatically follow from the International Health Regulations, according to which interventions in fundamental rights have to be justified by facts. The principle of proportionality is the logical place where facts and normativity meet. Since science has polarized during the pandemic, the court selection and interpretation of scientific expertise is itself a politicized value judgment. Courts, I conclude, base their selection and interpretation on publicly available and legitimate knowledge. I develop this hypothesis on the basis of COVID-19-jurisprudence in Germany.