Scientific argumentation in constitutional law

Abstract

The central claim of this paper is that, in the case of restrictions on fundamental rights, scientific argumentation should play a new, central role in the assessment of the conflict and the restrictions of fundamental rights. Our claim is that in the field of public health, measurable data signifies the need for a restriction. For example, in times of epidemics, let us say, when imposing a curfew (as a restriction on freedom of movement) or compulsory wearing of masks or mandatory vaccination, the terminal nature of the epidemic, the number of victims, the speed of transmission of the disease, and thus the measurable consequences of the infection are relevant in determining the  proportionality test in constitutional law. In other words, if, in the language of constitutional law, it is to be decided whether it is necessary and proportionate to make vaccines compulsory, it will be decided on the basis of medical data.