Methods of deference in human rights adjudication

Thesis

The phenomenon of judicial deference to the executive or legislature in human rights adjudication has elicited extensive scholarly discussions. Whilst much has been written on whether and when courts should defer, this thesis is the first to systematically probe two questions regarding how courts should defer.

The first is what devices courts should use to express the various reasons for deference. I explain that in jurisdictions that satisfy certain background conditions (which include the jurisdictions whose case law this thesis draws upon, namely, Canada, Hong Kong, Ireland, Israel, New Zealand and United Kingdom), courts have three sets of grounds for deference: grounds that relate to arriving at correct outcomes on the rights issue in question, to respect for constitutional legitimacy, and to the achievement of other aspects of the common good that courts should take into account in adjudication. Noting that courts have at their disposal six devices for exercising deference – the burden of proof, standard of proof, standard of review, giving of weight to views, choice of interpretation and choice of remedy – I argue that sometimes specific devices must be used because other devices are unable to express, or express to the appropriate degree, the reasons for deference in a particular instance.

The second question that this thesis examines is how the methods of determining when and how to defer can be made more practicable for judges and litigants without undue compromise of those methods’ ability to fulfil the reasons for deference in a particular case. I propose four techniques for striking a balance between these two considerations: the use of rules, presumptions and factorial analysis; mapping certain normative considerations for deference onto specific devices; developing clear and reliable indicators of deference; and developing finite scales for various devices and levels of scrutiny that combine devices.

Authors: Chan, S

• DOI: 10.5287/ora-44nk8629x
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: proportionality; judicial reasoning; standard of review; public law; constitutional theory; margin of discretion; judicial deference; constitutional rights; burden of proof; margin of appreciation; administrative law; separation of powers; judicial restraint; constitutional law; human rights adjudication
• Subjects: Constitutional law; Administrative law; Constitutional theory; Public law