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Deference refers to a certain respect or esteem which is due to a superior or an elder or a tendency of inferiors to acknowledge the legitimacy of superiors’ powers.It is a concept which is becoming increasingly popular in the works of legal commentator’s as of late. This is a direct result of the growing perception that it is a trait which is becoming synonymous with the Irish Judiciary.
The object of this research is to examine whether this accusation is true i.e. have our Superior Courts changed their mindset and adopted a more deferential stance than they used to exhibit. More importantly, it is my objective to determine whether this alleged deference on behalf of the Judiciary is an acceptable trait based on the impact it will have on those seeking justice from our courts and the wider implications on society as a whole. This will be achieved by completing an in-depth analysis of the relevant caselaw, first of all to determine the base line which is important, as it will establish whether the judiciary has deviated from this recently, and secondly, I will examine specific areas; namely deference in general, delegated legislation, distributive justice, and mandatory orders in order to assess the impact this deference will have on certain aspects of our society.
This research paper ultimately concludes that the Irish Judiciary have moved away from a position of strength and power to undoubtedly become more deferential in the last decade and a half, but as a result of the broad scope of the concept of deference it is impossible to draw an all-encompassing conclusion as to its merits, or lack thereof. Rather I will base my conclusions on the more specific areas of examination undertaken with the aim of highlighting that deference has both advantages and disadvantages which depend on the circumstances in which it is exhibited.
Smith, Philip: Deference under the separation of powers: an increasingly acceptable trait amongst the irish judiciary?. Masters Dissertation. Dublin, Dublin Institute of Technology, 2010