Derogation is a legal

term of art Jargon, or technical language, is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The conte ...

, which allows for part or all of a provision in a legal measure to be applied differently, or not at all, in certain cases.

European Foundation for the Improvement of Living and Working Conditions The European Foundation for the Improvement of Living and Working Conditions (Eurofound) is an agency of the European Union which focuses on managing research, gathering information, and communicating its findings. It was set up in May 1975 by t ...

Derogation
published 11 March 2007, accessed 14 December 2023 The term is also used in

Catholic canon law The canon law of the Catholic Church () is "how the Church organizes and governs herself". It is the system of religious laws and ecclesiastical legal principles made and enforced by the hierarchical authorities of the Catholic Church to regul ...

,Manual of Canon Law, pg. 69 and in this context differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.

Definitions

Black's Law Dictionary ''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary. History The first edition was published in 1891 by Wes ...

defines derogation as "the partial repeal or abolishing of a law, as by a subsequent act which limits its scope or impairs its utility and force". It is sometimes used, loosely, to mean abrogation, as in the

legal maxim A legal maxim is an established principle or proposition of law, and a species of aphorism and general maxim (philosophy), maxim. The word is apparently a variant of the Latin , but this latter word is not found in extant texts of Roman law with ...

''lex posterior derogat priori'' ("a subsequent law derogates the previous one"). According to ''West's Encyclopedia of American Law'', derogation "implies the taking away of only some part of a law", or it is a "partial repeal of a law, usually by a subsequent act that in some way diminishes its original intent or scope", so distinguished from

annulment Annulment is a legal procedure within secular and religious legal systems for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning alm ...

, defined as the destruction of the law by "an act of the legislative power, by constitutional authority, or by usage". Black's also distinguishes from what it calls "abrogation, which means the entire repeal and annulment of a law". In the law of

treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...

, derogation means the setting aside of some provision or requirement of the treaty. The party to the treaty is said to have "derogated from" that provision. In

human rights law International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, ag ...

, the term may carry the additional meaning of a national legislature suspending an obligation for a legitimate objective, usually a national security exception or some other extraordinary circumstance relating to the maintenance of public order.

History

''Jura regalia''

In the conflict between English common law and ecclesiastical courts, both existed as legal systems of equal validity in one geographic space. By the mid 14th century the

English Parliament The Parliament of England was the legislature of the Kingdom of England from the 13th century until 1707 when it was replaced by the Parliament of Great Britain. Parliament evolved from the great council of bishops and peers that advised th ...

had attempted to limit ecclesiastical jurisdiction with the

Statute of Praemunire The Statute of Praemunire ( 16 Ric. 2. c. 5) was an act of the Parliament of England enacted in 1392, during the reign of Richard II. Its intention was to limit the powers of the papacy in England, by making it illegal to appeal an English cou ...

. Based on the legislation, litigants in ecclesiastical courts argued that canon law, under the authority of Rome, was a derogation of the rights of the English crown, and argued for damages and criminal penalties under that statute. After the

Reformation The Reformation, also known as the Protestant Reformation or the European Reformation, was a time of major Theology, theological movement in Western Christianity in 16th-century Europe that posed a religious and political challenge to the p ...

, appealing to the Roman (or "spiritual") jurisdiction was considered punishable as an offence in derogation of the king's authority.

Edward Coke Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan era, Elizabethan and Jacobean era, Jacobean eras. Born into a ...

argued that derogating from the common law was the same as diminishing the authority of the King. According to Coke, the royal power had been undermined by the ecclesiastical jurisdiction: "the pope had usurped spiritual jurisdiction of this realm in derogation of the imperial crown of the king." Coke defended royal supremacy in ''De Iure Regis Ecclesiastico'' in a historical commentary of the common law's protection of royal authority against papal subversion.

Common law

There is a legal maxim: Statutes in derogation of the common law are to be strictly construed. This is also called the "derogation canon". After the American Civil War legislation started to become more important, and some people saw

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

as a way of expanding and discovering new rights under the

Due Process Clause A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due proces ...

jurisprudence. Others thought that legislative statutes that changed common law ought to be narrowly interpreted without expansion, as the derogation canon suggested. This became a source of political conflict.

Henry Campbell Black Henry Campbell Black (October 17, 1860 – March 19, 1927) was the founder of ''Black's Law Dictionary ''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the auth ...

(of ''

'') wrote:

It is a rule generally observed (except where prohibited by statute) that acts of the legislature made in derogation of the common law will not be extended by construction; that is, the legislature will not be presumed to intend innovations upon the common law, and its enactments will not be extended, in directions contrary to the common law, further than is indicated by the express terms of the law or by fair and reasonable implications from its nature or purpose or the language employed.

However, Black wrote that the canon "no longer has any foundation in reason".

Theodore Sedgwick Theodore Sedgwick (May 9, 1746January 24, 1813) was an American attorney, politician, and jurist who served in elected state government and as a delegate to the Continental Congress, a U.S. representative, and a senator from Massachusetts. H ...

said of common law: "It is difficult, if not impossible now to understand this enthusiastic loyalty to a body of law, the most peculiar features of which the activity of the present generation have been largely occupied in uprooting and destroying." Sedgwick too called the derogation canon "absurd". In 1907

Roscoe Pound Nathan Roscoe Pound (October 27, 1870 – June 28, 1964) was an American legal scholar and educator. He served as dean of the University of Nebraska College of Law from 1903 to 1911 and was dean of Harvard Law School from 1916 to 1936. He was a ...

, in an article called "Spurious Interpretation", argued that the derogation canon had become a cover for judicial hostility towards legislation, and called into question the legitimacy of judicial fidelity to some pre-existing and conflicted common law precepts.

Treaties

Derogation clauses are common in modern treaties. They are often included in human rights treaties, as well as treaties on matters related to trade. Some treaties expressly disallow derogations, related to the idea of ''

jus cogens Jus or JUS may refer to: Language * Jussive mood, in grammar * Yus, two early Cyrillic letters * Jumla Sign Language, of Nepal (ISO 639-3:jus) Law * Jus (law), a right afforded to ancient Romans * Jus (canon law), a Roman Catholic custo ...

'', or international norms from which derogation is considered unjustifiable in any circumstances. One such example is the Convention Against Torture, of which Article 2(2) states:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Terrorism

A UK law permitting warrantless arrest and detention of suspected terrorists was found to violate protected rights according to '' Brogan v United Kingdom'', an ECHR decision in which the court reviewed the arrest in

Northern Ireland Northern Ireland ( ; ) is a Countries of the United Kingdom, part of the United Kingdom in the north-east of the island of Ireland. It has been #Descriptions, variously described as a country, province or region. Northern Ireland shares Repub ...

of four persons under a 1984 British law that created a special powers derogation from the established proscription against warrantless arrests.

European Union law

From the outset,

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...

(EU) law has allowed for limited derogation from its requirements, "to the extent and for the periods strictly necessary" to achieve the Union's objectives. Article 226 of the

Treaty of Rome The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was signe ...

(1957) allowed for such derogations.European Economic Community
Treaty establishing the European Economic Community
25 March 1957, accessed 14 December 2023 In terms of EU legislation, a derogation can also imply that a

member state A member state is a state that is a member of an international organization or of a federation or confederation. Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign states ...

delays the implementation of an element of an EU

Regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...

(etc.) into their legal system over a given timescale, such as five years, or that a member state has opted not to enforce a specific provision in a treaty due to internal circumstances (typically a

state of emergency A state of emergency is a situation in which a government is empowered to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state before, during, o ...

Catholic canon law

In canon law a ''dispensation'' affirms the validity of a law, but asserts that the law will not be held to apply to one or more specific persons, for a specific reason. (For example, while the Catholic Church's canon law does not normally recognise gender transition, an

intersex Intersex people are those born with any of several sex characteristics, including chromosome patterns, gonads, or genitals that, according to the Office of the United Nations High Commissioner for Human Rights, "do not fit typical binar ...

woman may present appropriate medical documentation to seek, and possibly receive, a dispensation from the Holy See to live and be recognised as a man, or vice versa.) ''Derogation'', on the other hand, affects the applicability of a law in general. A non-canon-law analogue of dispensation might be the issuing of a zoning variance to a particular business, while a general rezoning applied to all properties in an area is more analogous to derogation.

References

Bibliography

* Della Rocca, F. (1959) (trans. Rev. Anselm Thatcher, O.S.B.), ''Manual of Canon Law''. Milwaukee: The Bruce Publishing Company.

External links

''Catholic Encyclopedia'' Derogation
Civil law (legal system) European Union law Emergency laws Catholic Church legal terminology {{constitutional-law-stub