Devices for Deference

Abstract

Abstract This chapter explains that the courts have at their disposal the following six devices for exercising deference: the burden of proof, standard of proof, standard of review, giving of weight to views, choice of interpretation (ie adopting an interpretation of a constitutional provision that affords the government a broader permissible scope of action), and choice of remedy. The chapter illustrates how the devices can be used at the various stages of rights adjudication—ie rights definition, limitation, and remedial stages—and does so by drawing on case law from Canada, Hong Kong, Ireland, Israel, New Zealand, and the United Kingdom.