A preliminary framework for measuring deference in rights reasoning

Abstract

This 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.