Deference in Human Rights Adjudication
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Product details:
- Publisher OUP Oxford
- Date of Publication 25 July 2024
- ISBN 9780198921646
- Binding Hardback
- No. of pages224 pages
- Size 241x164x19 mm
- Weight 498 g
- Language English 523
Categories
Short description:
This book explores the theoretical and practical dimensions of deference in six common law jurisdictions to answer two key questions: what devices courts should use to exercise deference, and how to make deference more workable for judges and predictable for litigants.
MoreLong description:
In human rights adjudication, courts sometimes face issues that they lack the expertise or constitutional legitimacy to resolve. One way of dealing with such issues is to 'defer', or accord a margin of appreciation, to the judgments of public authorities. This raises two important questions: what devices courts should use to exercise deference, and how deference can be made more workable for judges and predictable for litigants.
Combining in-depth conceptual analysis with practice in a broad range of jurisdictions, Deference in Human Rights Adjudication answers these questions. It introduces six devices for deference (namely, the burden of proof, standard of proof, standard of review, giving of weight, choice of interpretation, and choice of remedy), analyzes how courts should choose amongst them, and proposes techniques for rendering deference practicable. The book has two distinctive features. First, it engages with the jurisprudence of six common law jurisdictions that apply a structured proportionality test in rights adjudication, namely, Canada, Hong Kong, Ireland, Israel, New Zealand, and the United Kingdom. Second, it offers guidelines for judges who wish to apply its theoretical arguments. As such, Deference in Human Rights Adjudication will enable human rights adjudication to be more principled and in line with the rule of law and separation of powers.
Insightful and pioneering, this book will be an important reference for researchers, teachers, and students of constitutional theory, comparative constitutional law, and human rights law around the world. It will also assist practitioners, judges, and policymakers who have to grapple with issues of deference in adjudication.
Professor Chan's rich, rigorous comparative analysis of judicial deference is full of insight on every page. Her book takes a topic that is notoriously resistant to systemic analysis and constructs a bold yet careful framework for understanding it, based on caselaw from jurisdictions around the world. This is a must read for all judges, scholars, and students working on human rights adjudication, proportionality, and indeed adjudication in general.
Table of Contents:
Introduction
Reasons for Deference
Devices for Deference
Choice of Device I: Types of Reasons
Choice of Device II: Strength of Reasons
Choice of Device III: Practicability
Conclusion
