'International Meaning': Comity in Fundamental Rights Adjudication

International Journal of Refugee Studies, Vol. 13, pp. 280-292, 2002

12 Pages Posted: 7 Jul 2008

Date Written: July 3, 2008

Abstract

In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity (such as the principles of subsidiarity in the Strasbourg Court and justiciability in the British courts) justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from that of another decision maker. I elaborate this view by reference to the decision of the House of Lords in Adan and Aitseguer [2001] 1 All ER 593.

Keywords: comity

Suggested Citation

Endicott, Timothy A.O., 'International Meaning': Comity in Fundamental Rights Adjudication (July 3, 2008). International Journal of Refugee Studies, Vol. 13, pp. 280-292, 2002. Available at SSRN: https://ssrn.com/abstract=1155024 or http://dx.doi.org/10.2139/ssrn.1155024

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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