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Article: A Preliminary Framework for Measuring Judicial Deference in Rights Reasoning

TitleA Preliminary Framework for Measuring Judicial Deference in Rights Reasoning
Authors
Issue Date2016
PublisherOxford University Press. The Journal's web site is located at http://icon.oxfordjournals.org/
Citation
International Journal of Constitutional Law (Forthcoming) How to Cite?
AbstractThis paper proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference – rights definition, standard of justification, burden of justification and cogency of evidence – along a triadic scale of not deferential, moderately deferential and highly deferential. The proposed framework is designed for common law jurisdictions that embrace a two-stage approach to rights adjudication in which courts initially ask whether there has been a prima facie limitation of rights and then, if so, proceed to assess that limitation using a proportionality test. The framework provides both the criteria for qualitative evaluations of, and the methodological foundation for quantitative studies of, the increasingly important phenomenon of judicial deference.
Persistent Identifierhttp://hdl.handle.net/10722/234627
ISSN
2015 Impact Factor: 0.667
2015 SCImago Journal Rankings: 0.613

 

DC FieldValueLanguage
dc.contributor.authorChan, CSW-
dc.date.accessioned2016-10-14T13:48:07Z-
dc.date.available2016-10-14T13:48:07Z-
dc.date.issued2016-
dc.identifier.citationInternational Journal of Constitutional Law (Forthcoming)-
dc.identifier.issn1474-2640-
dc.identifier.urihttp://hdl.handle.net/10722/234627-
dc.description.abstractThis paper proposes a methodology for measuring how deferential judicial reasoning is in human rights cases. The proposed framework ranks four strategies of exercising deference – rights definition, standard of justification, burden of justification and cogency of evidence – along a triadic scale of not deferential, moderately deferential and highly deferential. The proposed framework is designed for common law jurisdictions that embrace a two-stage approach to rights adjudication in which courts initially ask whether there has been a prima facie limitation of rights and then, if so, proceed to assess that limitation using a proportionality test. The framework provides both the criteria for qualitative evaluations of, and the methodological foundation for quantitative studies of, the increasingly important phenomenon of judicial deference.-
dc.languageeng-
dc.publisherOxford University Press. The Journal's web site is located at http://icon.oxfordjournals.org/-
dc.relation.ispartofInternational Journal of Constitutional Law-
dc.rightsPre-print: Journal Title] ©: [year] [owner as specified on the article] Published by Oxford University Press [on behalf of xxxxxx]. All rights reserved. Pre-print (Once an article is published, preprint notice should be amended to): This is an electronic version of an article published in [include the complete citation information for the final version of the Article as published in the print edition of the Journal.] Post-print: This is a pre-copy-editing, author-produced PDF of an article accepted for publication in [insert journal title] following peer review. The definitive publisher-authenticated version [insert complete citation information here] is available online at: xxxxxxx [insert URL that the author will receive upon publication here].-
dc.titleA Preliminary Framework for Measuring Judicial Deference in Rights Reasoning-
dc.typeArticle-
dc.identifier.emailChan, CSW: corachan@hku.hk-
dc.identifier.authorityChan, CSW=rp01296-
dc.identifier.hkuros269954-
dc.publisher.placeUnited Kingdom-

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