Judicial deference is the condition of a court yielding or submitting its judgment to that of another legitimate party, such as the
executive branch in the case of
national defense. It is most commonly found in countries, such as the United Kingdom, which lack an
entrenched constitution, as the essential purpose of such documents is to limit the power of the
legislature
A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial power ...
.
United Kingdom
In ''Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others''
999 Lord Hope explained that courts should "defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society". Nevertheless, the doctrine has been criticised for representing a way in which the courts should act obediently to the
British Parliament to uphold the doctrine of
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...
.
However, any suggestions that the
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
was being unduly servile to Parliament were overturned by ''
A v Home Secretary (No 2)''
005 In the case, detainees imprisoned without charge under section 23 of the
Anti-terrorism, Crime and Security Act 2001, on the grounds that they posed a threat to national security, appealed successfully against their detention. The court held that the powers of detention without charge had discriminatory impact (Articles 5 and 14 of the
Human Rights Act 1998
The Human Rights Act 1998 (c. 42) is an Act of Parliament (United Kingdom), Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the ...
).
United States
There are some examples of judicial deference in the United States, despite its entrenched constitution. For example, in
immigration law
Immigration law includes the national statutes, Primary and secondary legislation, regulations, and Precedent, legal precedents governing immigration into and deportation from a country. Strictly speaking, it is distinct from other matters such as ...
, the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
has historically sought to allow the explicit constitutional authority of the
US Congress
The United States Congress is the legislature, legislative branch of the federal government of the United States. It is a Bicameralism, bicameral legislature, including a Lower house, lower body, the United States House of Representatives, ...
. An example is
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
decision ''
Fiallo v. Bell'' (1977).
The same restraint is requested in
foreign affairs
''Foreign Affairs'' is an American magazine of international relations and foreign policy of the United States, U.S. foreign policy published by the Council on Foreign Relations, a nonprofit organization, nonprofit, nonpartisan, membership or ...
as
not-judicable matters,
[Kirk A. Randazzo, ''Defenders of Liberty or Champions of Security? Federal Courts, the Hierarchy of Justice, and U.S. Foreign Policy'', 1438430477, 9781438430478, SUNY Press 2010.] to safeguard the executive branch.
See also
*
Major questions doctrine
*
Business judgment rule
References
See also
*http://www.lse.ac.uk/collections/humanRights/articlesAndTranscripts/Judicial_deference_under_HRA1998.pdf
FindLaw's United States Federal Circuit case and opinions.
Legal doctrines and principles
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