Deference in Human Rights Adjudication

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.

Cora Chan, Professor of Law, University of Hong Kong

Cora Chan is an Professor of Law at the University of Hong Kong. She specializes in constitutional law and has published on such topics as proportionality, deference, national security, and China-Hong Kong relations. Her research has been recognized by international, territory-wide, and university awards, including the Society of Legal Scholars Best Paper Prize, Hong Kong Research Grants Council Early Career Award, and inaugural Rosie Young 90 Medal for Outstanding Young Woman Scholar. She is the co-editor of China's National Security: Endangering Hong Kong's Rule of Law? (Hart, 2020). She was a Council member of the International Society of Public Law and a member of the law panel of Hong Kong's Research Assessment Exercise 2020.

1. Introduction
2. Reasons for DeferenceÂ
3. Devices for DeferenceÂ
4. Choice of Device I: Type of ReasonsÂ
5. Choice of Device II: Strength of Reasons
6. Choice of Device III: Practicability
7. Conclusion