Katharine Young

It is surely an understatement to observe that global constitutionalism and human rights are under considerable pressure. Central to many of the up-to-the-minute (post-January 2025) challenges, is the age-old question of the role of the apex or supranational court in rights protection. Research into how courts and tribunals react, and should react, to the ever-expanding list of human rights concerns that reach them, is vital, whether one’s concern is human rights inflation, juristocracy, rising authoritarianism, or all three. The default position of judicial restraint and its corollary, deference, often lacks nuance.

Cora Chan’s new book, Deference in Human Rights Adjudication, offers a tightly reasoned and extensive engagement with the premise of deference. Drawing on her home jurisdiction, Hong Kong, Cora Chan also engages cases and commentary from Canada, Ireland, Israel, New Zealand and the United Kingdom. With careful analysis of several lines of caselaw, more analytical than strictly comparative, she presents a grid of guidance notes on the various postures that courts have adopted, in dealing with deference and human rights. The findings are telling, not just for the jurisdictions in question, but for the international and regional human rights tribunals now faced with questions of their own appropriate role, and for other courts supervising the extensive bills of rights and expressly justiciable complaints that have come with the last wave of constitution making and amendment.

For institutionally minded scholars, the challenge is to find the sweet spot between, on the one hand, judicial abdication, where excessive deference means that human rights, although notionally enforceable, become sham, and on the other, judicial usurpation, where the refusal of deference can turn courts into juristocratic governors, without accountability or proper competence. This sweet spot becomes all the more complicated when the complaints raised in human rights adjudication apply to such distinctive issues as challenges to police treatment, cuts in social benefits, hostility to sexual minorities, disavowal of gender equality claims, and concerns in electoral integrity, all under the header of “national human rights complaints.” In addition, we must add newer concerns that cut against prior ideas of “negative” and “positive” rights or obligations, including increasingly litigated economic and social rights, and even existential questions such as climate change or artificial intelligence, all leveraging (justiciable) human rights claims.

There is, of course, an extensive literature on the separation of powers and new models of rights. Professor Chan engages widely with it in order to devise a spectrum of judicial models, that range loosely on an axis of judicial formalism, from what she calls algorithmic (the most formalist), to stable, elastic and finally amorphic (the least formalist) judicial models. These models are drawn from an array of devices which includes lowering the standard of review, lowering the standard of proof, reversing the burden of proof, or granting a deferential remedy. The depiction of these four models can be read as expanding from previous typologies of strong versus weak judicial review, or the interbranch and extrabranch interactions of dialogic, experimental or catalytic review.¹

One particularly notable focus of the book is how courts are now dealing with question of evidence and the burden of proof in human rights adjudication. This question raises concerns about judicial deference, particularly given new trends in empowered executives, reconfigured public servants, and the broader issues of epistemic polarization, and its anti-science, anti-fact, populist undertones. One might be concerned that this vital issue becomes too flattened in a typology of judicial models, and that for instance an algorithm on proof might cut differently from an algorithm on remedy, particularly under polycentric or politically unpopular standpoints. Yet it is an important issue to draw out and Professor Chan gives it careful treatment.

Another is the irony that deference has grown just as another “global” model for human rights adjudication has increased: the use of proportionality analysis. Again, a huge and important literature canvases the use of proportionality reasoning, as a structured inquiry that has travelled across civil law and common law divides.² The irony is, as Professor Chan notes, that deference may inspire or rationalize restraint, while proportionality analysis does something else altogether, allowing judges to inquire closely into very modes of reasoning used by the executive and legislative branches, seeking to ensure that decisions are made as necessary but also in the manner “least restrictive” to human rights. As my own work on the positive obligations raised by human rights suggests (admittedly in different judicial contexts, such as the South African Constitutional Court and the Committee on Economic, Social and Cultural Rights), less structured doctrines like reasonableness can avoid the forced and sometimes extreme choice between strict deference (or use of parallel doctrines, such as the margin of appreciation) and proportionality analysis, but introduce additional issues.³

Professor Chan’s book takes as a given the background challenge of the separation of powers, and the fact that the utopianism of human rights and the possibility of their adjudication presents a constant threat of undermining or overthrowing this settlement. Her committed analysis of the “doctrinal superstructure of public law” (P. 8), as she puts it, delves deeply into justifications and instantiations of deference. Our inherited models, from Montesquieu to Madison and beyond, have been considerably updated by comparative insight, particularly from “Global South” courts and institutions, and from jurisdictions in which collaboration between the branches seems both tenable and attractive, or in which “fourth branch” institutions play distinctive roles for human rights.⁴ I would point to the other “superstructures,” beyond doctrine (especially the old-fashioned economic one), that inevitably warrant inclusion.⁵ In this context, deference, even of variegated intensity, seems a limited tool. But to such developments, the engagement with frameworks from a number of jurisdictions, a number of courts, and a number of human rights concerns, greatly informs our understanding. This book justifies a close reading.

1. E.g. from earlier decades on this conundrum, Mark Tushnet, Weak Courts, Strong Rights (2008); Katharine G. Young, Constituting Economic and Social Rights (2012).
2. A line of comparative inquiry progressed notably by Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (2013).
3. See chapter Katharine G. Young, in Vicki C. Jackson and Mark Tushnet, Proportionality: New Frontiers, New Challenges (2017).
4. E.g. Aileen Kavanagh, The Collaborative Constitution (2023), or symposium on Democratic Constitutions, Poverty and Economic Inequality: Redress Through the Fourth Branch Institutions? (Rosalind Dixon and Mark Tushnet eds., 2023).
5. One broad take on economic superstructures and rights is outlined in a number of interdisciplinary pieces in The Oxford Handbook of Economic and Social Rights (Malcolm Langford & Katharine G. Young, eds., 2023).