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The Paradox of Judicial Deference


Guy Davidov


Hebrew University of Jerusalem - Faculty of Law


National Journal of Constitutional Law, Vol. 12, No. 2, pp. 133-164, February 2001

Abstract:     
This article analyses the Canadian constitutional case-law in which the Supreme Court uses the doctrine of deference, and considers the justifications for this doctrine. The two main justifications that have been advanced for deference concern the judiciary's alleged institutional incompetence and the lack of democratic legitimacy. I argue that none of these arguments can explain the doctrine of deference as developed and used by the Supreme Court of Canada. It will be shown that courts are perfectly capable of making decisions on constitutional questions. And as for democratic legitimacy arguments - which are based on the fear of subjective reasoning - they are seriously undermined by the indeterminate and subjective application of the doctrine. In fact, it will be shown that deference only adds subjectivity to the analysis. This is what I will call the paradox of judicial deference. It will further be argued that a relaxed level of constitutional review is indeed justified only when the risk of a judicial mistake is too high for us as a society to take. And in such cases, rather than using the vague concept of deference, a relaxed but explicit test must be developed.

Number of Pages in PDF File: 42

Keywords: constitutional law, charter, section 1, limitation clause, deference, margin of appreciation, institutional competence, democratic legitimacy

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Date posted: August 2, 2006  

Suggested Citation

Davidov, Guy, The Paradox of Judicial Deference. National Journal of Constitutional Law, Vol. 12, No. 2, pp. 133-164, February 2001. Available at SSRN: http://ssrn.com/abstract=920607

Contact Information

Guy Davidov (Contact Author)
Hebrew University of Jerusalem - Faculty of Law ( email )
Mt. Scopus
Jerusalem, 91905
Israel

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