In Defence of Due Deference

Bibliographic Data

ID9196259
AuthorsAmy L Young (0000-0002-0810-4256, Oxford University Press (United Kingdom), corresponding author), Alison L Young
Year2009
Volume72
Issue4
Pages554-580
Publication date2009-07-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueModern Law Review (JOURNAL)
Journal identifiersISSN: 0026-7961 • E-ISSN: 1468-2230
PublisherWiley (PUBLISHER • GB)
DOI10.1111/j.1468-2230.2009.00757.x
OpenAlexW1991650079
LanguageEN
Citations received5

The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non‐absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights

Criticism · Deference · Demise · Doctrine · Fundamental rights · Human rights · Judicial deference · Judicial review · Law and economics · Legislature · Margin of appreciation · Political science · Sociology · Criminal Law and Evidence · Judicial and Constitutional Studies · Law · Ombudsman and Human Rights

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