Deference: Reasoning Differently on the Basis of External Factors

Andrew Legg

in The Margin of Appreciation in International Human Rights Law

Published in print July 2012 | ISBN: 9780199650453
Published online September 2012 | e-ISBN: 9780191741173 | DOI:

Series: Oxford Monographs in International Law

Deference: Reasoning Differently on the Basis of External Factors

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The margin of appreciation is rooted in the concept of deference, which is defined as the practice of assigning weight to reasons for a decision on the basis of external factors. The account of deference in the book draws on the concept of second-order reasons from the philosophy of practical reasoning. These are reasons to act or refrain from acting on one's own assessment of the balance of reasons. In the legal context, reasons of comity and epistemic limits provide good grounds for deference. Judicial deference is not non-justiciability in disguise. These grounds furnish three factors for the margin of appreciation that are explored in later chapters: democratic legitimacy; the common practice of states; and expertise. This chapter provides the conceptual backbone for the book and demonstrates the use of second-order reasoning in the case law of the three tribunals studied.

Keywords: philosophy of practical reasoning; deference; second-order reasoning; comity; expertise

Chapter.  11133 words. 

Subjects: Public International Law

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