Sara Azevedo
Guest lecturer at University of Lisbon | Law School
Member of Lisbon Legal Theory (https://lisbonpubliclaw.pt/en/lisbon-legal-theory/)
Assistant Integrated Researcher at Lisbon Public Law Research Centre (https://lisbonpubliclaw.pt/en/investigadores/sara-azevedo/)
Deputy Director of e-Publica Law Journal (www.e-publica.pt)
Member of Lisbon Legal Theory (https://lisbonpubliclaw.pt/en/lisbon-legal-theory/)
Assistant Integrated Researcher at Lisbon Public Law Research Centre (https://lisbonpubliclaw.pt/en/investigadores/sara-azevedo/)
Deputy Director of e-Publica Law Journal (www.e-publica.pt)
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Papers by Sara Azevedo
In recent decades, balancing has become one of the most controversial topics in legal theory (and especially in the theory of fundamental rights). This is due to the ambiguity of the term “balancing”, which is often used in different ways. In addition to this linguistic barrier, there are a variety of theories on balancing: it is either regarded as an arbitrary activity or as an activity capable of leading to rational results; on the other hand, it is claimed that the result of balancing is limited to a specific case or that it can be applied to other situations. This paper focuses on these theories. After a brief characterisation of each view, it is argued that balancing is a method capable of achieving rational and universal results. Such a claim requires an analysis (and dismantling) of some of the criticisms to which balancing has been subjected, including the known as the incommensurability objection
Abstract: This text focuses on Ruling 171/2017 of the Portuguese Constitutional Court, which discusses the unconstitutionality of a retroactive tax provision. This ruling follows previous case law on this issue, both in terms of the outcome – unconstitutionality – and the constitutional parameter on which it is based – the prohibition of tax retroactivity in Article 103(3). However, Ruling 171/2017 departs completely from previous rulings in some underlying premises. These premises will be critically analyzed, comparing this ruling with previous case law on this issue and determining its impact on subsequent rulings.
In recent decades, balancing has become one of the most controversial topics in legal theory (and especially in the theory of fundamental rights). This is due to the ambiguity of the term “balancing”, which is often used in different ways. In addition to this linguistic barrier, there are a variety of theories on balancing: it is either regarded as an arbitrary activity or as an activity capable of leading to rational results; on the other hand, it is claimed that the result of balancing is limited to a specific case or that it can be applied to other situations. This paper focuses on these theories. After a brief characterisation of each view, it is argued that balancing is a method capable of achieving rational and universal results. Such a claim requires an analysis (and dismantling) of some of the criticisms to which balancing has been subjected, including the known as the incommensurability objection
Abstract: This text focuses on Ruling 171/2017 of the Portuguese Constitutional Court, which discusses the unconstitutionality of a retroactive tax provision. This ruling follows previous case law on this issue, both in terms of the outcome – unconstitutionality – and the constitutional parameter on which it is based – the prohibition of tax retroactivity in Article 103(3). However, Ruling 171/2017 departs completely from previous rulings in some underlying premises. These premises will be critically analyzed, comparing this ruling with previous case law on this issue and determining its impact on subsequent rulings.