Defence to the Legislature : a study of judicial deference to legislative constitutional decision-making

Abstract

In recent times courts and legal scholars have paid increased attention to the concept of judicial deference. This thesis examines one discrete strand of the debate - judicial deference to legislative constitutional decision-making concerning fundamental human rights. It critically examines the role and practice of this kind of deference in constitutional jurisprudence and offers an account of what, it is argued, is the most defensible case for deference in the Irish constitutional order. It argues that there are difficulties with rationales which courts currently rely on in support of deference. However, it is argued that deference may be most defensible if Irish courts shift from deferring to hypothetical legislative constitutional decisions to affording deference only in cases where it can be shown that the legislature has offered express and publicly ascertainable justification for a particular constitutional decision. It is concluded that the presumption of constitutionality should be abandoned to facilitate this shift in orientation. Deference, it is argued, may be defensible where it is earned rather than where it is extended as a matter of course.