Något om den egendomsrättsliga proportionalitetsprincipen : Den funktionella grundens betydelse för en rättvis balans

Sammanfattning: A constitutional or human right may only be properly understood in its practical application, specifically where an infringment is thought to be unlawful, if the practitioner is aware of the function of the right. This much is clear for the case-law of the German Constitutional Court since its ruling in the 1958 case Lüth. It is specifically this relationship between function, which informs which circumstances are relevant for a balancing of interests, and the principle of proportionality which is the starting point for this thesis. As to the method, a variation of functional equivalence, as developed by Ralf Michaels, is employed. By critically analysing the right to property in the ECHR, Germany, Sweden and the United States of America (as is expressed in the Contract Clause, and the 5th and 14th amendments), this thesis demonstrates that the well-known problem of incommensurability in proportionality doctrine is especially prevalent for the right to property. Through functional analysis of the right to property, aided by case-law dating back to origins of each legal system´s bill of rights, I demonstrate that the incommensurability problem is not only rarely identified, but that a systematic interpretation of the separate constitutions´ metafunctional foundations leads to the conclusion that the current state of property rights in Sweden and the United States may be contrary to the very conceptions of "fairness and justice".