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In Defence of Due Deference
Author(s) -
Young Alison L.
Publication year - 2009
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2009.00757.x
Subject(s) - deference , doctrine , demise , criticism , law , political science , judicial deference , human rights , judicial review , law and economics , margin of appreciation , legislature , sociology , fundamental rights
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.