Abstrakt
In 2020, the Czech Government banned fathers' presence at childbirth to contain the spread of COVID-19. The measure has sparked a media debate among legal experts and the public about human rights and women's rights, highlighting the proportionality test as an objective expert tool to review the measure's proportionality. Through an interpretive analysis of the debate, our paper identifies dominant meanings and narratives on the measure to show how emotions are perceived by legal professionals when assessing the proportionality test and how this perception interferes with viewing fathers' presence at childbirth as a women's right.
While the legal expertise emphasises objectivity and rationality of proportionality test and excludes emotions, the argumentation of women's rights admits emotions as relevant alongside expertise. At the same time, the media debate demonstrates that only some actors consider the ban on fathers at childbirth to violate women's rights, which impacts whether emotions are treated as part of legal expertise.
The paper argues that by excluding emotions from legally relevant argumentation, legal expertise questions the potential of the proportionality test to reach a legitimate conclusion as the interference with fundamental rights is related to emotional aspects of human integrity, autonomy, dignity, and other individual freedoms. The analysis suggests ways to consider emotionality alongside rational considerations in the legitimation process of the proportionality test. The paper contributes to the scholarship on proportionality by emphasising the heuristic value of the sociology of emotions to analyse different meanings of emotions and their contingency inside public debates on legal issues.