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The Margin of Appreciation in International Human Rights LawDeference and Proportionality$
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Andrew Legg

Print publication date: 2012

Print ISBN-13: 9780199650453

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199650453.001.0001

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Deference: Reasoning Differently on the Basis of External Factors

Deference: Reasoning Differently on the Basis of External Factors

Chapter:
(p.17) 2 Deference: Reasoning Differently on the Basis of External Factors
Source:
The Margin of Appreciation in International Human Rights Law
Author(s):

Andrew Legg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199650453.003.0002

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

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