A preliminary framework for measuring deference in rights reasoning

Abstract

This article 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 arguments—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.