Law

Deference and the Presumption of Constitutionality is the first stand-alone text to examine the increasingly relevant notion of deference in the context of constitutional rights litigation. It engages in a thorough conceptual study of the concept of deference and its relationship with the presumption of constitutionality in Ireland and examines the practical role of deference in the human rights jurisprudence in other jurisdictions. This book distils the various rationales put forward for the practice of judicial deference and subjects them to critique and examination. Out of this, a new theory of constitutional interpretation is offered and a positive argument put forward as to how deference may have a positive and constructive role in the future of Irish constitutional law. This, the author argues, involves a rejection of the presumption of constitutionality.


Deference and the Presumption of Constitutionality

  • Gives the constitutional lawyer an invaluable source of materials dealing with deference, standards of review and the burden and onus of proof in Ireland and other jurisdictions.
  • Contains the most detailed and complex discussion of Irish constitutional law in a monograph to date.
  • Provides a detailed analytical argument to the effect that the presumption of constitutionality should be abandoned, with, instead, the onus of justification for rights-limiting legislation placed firmly on the State.
  • Examines the application of the proportionality test in detail and discusses the different methods of applying it in light of different approaches to deference and adoptions of different standards of review.
  • Offers sustained and critical examination of the justifications put forward by courts in this and other jurisdictions for judicial deference to legislative decisions concerning constitutional or fundamental rights.
  • Discusses the judicial use of distinctions between law and policy and offers a detailed examination of the leading cases of O'Reilly v Limerick Corporation, Sinnott v Minister for Education and T.D. v Minister for Education.

Deference and the Presumption of Constitutionality

Deference and the Presumption of Constitutionality is the first stand-alone text to examine the increasingly relevant notion of deference in the context of constitutional rights litigation. It engages in a thorough conceptual study of the concept of deference and its relationship with the presumption of constitutionality in Ireland and examines the practical role of deference in the human rights jurisprudence in other jurisdictions. This book distils the various rationales put forward for the practice of judicial deference and subjects them to critique and examination. Out of this, a new theory of constitutional interpretation is offered and a positive argument put forward as to how deference may have a positive and constructive role in the future of Irish constitutional law. This, the author argues, involves a rejection of the presumption of constitutionality.


Deference and the Presumption of Constitutionality

  • Gives the constitutional lawyer an invaluable source of materials dealing with deference, standards of review and the burden and onus of proof in Ireland and other jurisdictions.
  • Contains the most detailed and complex discussion of Irish constitutional law in a monograph to date.
  • Provides a detailed analytical argument to the effect that the presumption of constitutionality should be abandoned, with, instead, the onus of justification for rights-limiting legislation placed firmly on the State.
  • Examines the application of the proportionality test in detail and discusses the different methods of applying it in light of different approaches to deference and adoptions of different standards of review.
  • Offers sustained and critical examination of the justifications put forward by courts in this and other jurisdictions for judicial deference to legislative decisions concerning constitutional or fundamental rights.
  • Discusses the judicial use of distinctions between law and policy and offers a detailed examination of the leading cases of O'Reilly v Limerick Corporation, Sinnott v Minister for Education and T.D. v Minister for Education.

By: Brian Foley, LL.B. (Dub), Ph.D. (Dub), B.L. ISBN: 978-1-904541-76-9

Published: Thursday 01, January 2009.


€80.00

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