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Derogation is a legal term of art, [1] [2] which allows for part or all of a provision in a legal measure to be applied differently, or not at all, in certain cases. [3] The term is also used in Catholic canon law, [4] [ full citation needed ] and in this context differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.
Black's Law Dictionary defines derogation as "the partial repeal or abolishing of a law, as by a subsequent act which limits its scope or impairs its utility and force". It is sometimes used, loosely, to mean abrogation, as in the legal maxim lex posterior derogat priori ("a subsequent law derogates the previous one"). [5]
According to West's Encyclopedia of American Law, derogation "implies the taking away of only some part of a law", or it is a "partial repeal of a law, usually by a subsequent act that in some way diminishes its original intent or scope", so distinguished from annulment, defined as the destruction of the law by "an act of the legislative power, by constitutional authority, or by usage". [6] Black's also distinguishes from what it calls "abrogation, which means the entire repeal and annulment of a law".
In the law of treaties, derogation means the setting aside of some provision or requirement of the treaty. The party to the treaty is said to have "derogated from" that provision. [7]
In human rights law, the term may carry the additional meaning of a national legislature suspending an obligation for a legitimate objective, usually a national security exception or some other extraordinary circumstance relating to the maintenance of public order. [7]
In the conflict between English common law and ecclesiastical courts, both existed as legal systems of equal validity in one geographic space. By the mid 14th century the English Parliament had attempted to limit ecclesiastical jurisdiction with the Statute of Praemunire. Based on the legislation, litigants in ecclesiastical courts argued that canon law, under the authority of Rome, was a derogation of the rights of the English crown, and argued for damages and criminal penalties under that statute. [8] [9]
After the Reformation, appealing to the Roman (or "spiritual") jurisdiction was considered punishable as an offence in derogation of the king's authority. Edward Coke argued that derogating from the common law was the same as diminishing the authority of the King. According to Coke, the royal power had been undermined by the ecclesiastical jurisdiction: "the pope had usurped spiritual jurisdiction of this realm in derogation of the imperial crown of the king." Coke defended royal supremacy in De Iure Regis Ecclesiastico in a historical commentary of the common law's protection of royal authority against papal subversion. [10]
There is a legal maxim: Statutes in derogation of the common law are to be strictly construed. This is also called the "derogation canon". After the American Civil War legislation started to become more important, and some people saw common law as a way of expanding and discovering new rights under the Due Process Clause jurisprudence. Others thought that legislative statutes that changed common law ought to be narrowly interpreted without expansion, as the derogation canon suggested. This became a source of political conflict. [11] Henry Campbell Black (of Black's Law Dictionary ) wrote:
It is a rule generally observed (except where prohibited by statute) that acts of the legislature made in derogation of the common law will not be extended by construction; that is, the legislature will not be presumed to intend innovations upon the common law, and its enactments will not be extended, in directions contrary to the common law, further than is indicated by the express terms of the law or by fair and reasonable implications from its nature or purpose or the language employed.
However, Black wrote that the canon "no longer has any foundation in reason". Theodore Sedgwick said of common law: "It is difficult, if not impossible now to understand this enthusiastic loyalty to a body of law, the most peculiar features of which the activity of the present generation have been largely occupied in uprooting and destroying." Sedgwick too called the derogation canon "absurd". [12]
In 1907 Roscoe Pound, in an article called "Spurious Interpretation", argued that the derogation canon had become a cover for judicial hostility towards legislation, and called into question the legitimacy of judicial fidelity to some pre-existing and conflicted common law precepts. [11]
Derogation clauses are common in modern treaties. They are often included in human rights treaties, as well as treaties on matters related to trade. Some treaties expressly disallow derogations, related to the idea of jus cogens , [13] or international norms from which derogation is considered unjustifiable in any circumstances. One such example is the Convention Against Torture, of which Article 2(2) states: [14]
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
A UK law permitting warrantless arrest and detention of suspected terrorists was found to violate protected rights according to Brogan v. The United Kingdom , an ECHR decision in which the court reviewed the arrest in Northern Ireland of four persons under a 1984 British law that created a special powers derogation from the established proscription against warrantless arrests. [15]
From the outset, European Union (EU) law has allowed for limited derogation from its requirements, "to the extent and for the periods strictly necessary" to achieve the Union's objectives. Article 226 of the Treaty of Rome (1957) allowed for such derogations. [16] : Article 226(3)
In terms of EU legislation, a derogation can also imply that a member state delays the implementation of an element of an EU Regulation (etc.) into their legal system over a given timescale, [3] such as five years, or that a member state has opted not to enforce a specific provision in a treaty due to internal circumstances (typically a state of emergency).
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In canon law a dispensation affirms the validity of a law, but asserts that the law will not be held to apply to one or more specific persons, for a specific reason. (For example, while the Catholic Church's canon law does not normally recognise gender transition, an intersex woman may present appropriate medical documentation to seek, and possibly receive, a dispensation from the Holy See to live and be recognised as a man, or vice versa.) Derogation, on the other hand, affects the applicability of a law in general.
A non-canon-law analogue of dispensation might be the issuing of a zoning variance to a particular business, while a general rezoning applied to all properties in an area is more analogous to derogation.[ citation needed ]
The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
The law of the Republic of Ireland consists of constitutional, statutory, and common law. The highest law in the State is the Constitution of Ireland, from which all other law derives its authority. The Republic has a common-law legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system, albeit with a popularly elected president, a separation of powers, a developed system of constitutional rights and judicial review of primary legislation.
A decree is a legal proclamation, usually issued by a head of state such as the president of a republic, or a monarch, according to certain procedures. It has the force of law. It is called an executive order when issued by a president of the United States.
A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
The Anti-terrorism, Crime and Security Act 2001 is an Act of Parliament of the United Kingdom, formally introduced into Parliament on 19 November 2001, two months after the terrorist attacks in the United States on 11 September. It received royal assent and came into force on 14 December 2001. Many of its measures are not specifically related to terrorism, and a Parliamentary committee was critical of the swift timetable for such a long bill including non-emergency measures.
Customary international law are international obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or conventions. Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.
International law, also known as "law of nations", refers to the body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning. But in many cases, there is some ambiguity in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.
The Ecclesiastical Licences Act 1533, also known as the Dispensations Act 1533, Peter's Pence Act 1533 or the Act Concerning Peter's Pence and Dispensations, is an Act of the Parliament of England. It was passed by the English Reformation Parliament in the early part of 1534 and outlawed the payment of Peter's Pence and other payments to Rome. The Act remained partly in force in Great Britain at the end of 2010. It is under section III of this Act, that the Archbishop of Canterbury can award a Lambeth degree as an academic degree.
Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.
Thoburn v Sunderland City Council is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal.
Civil liberties in the United Kingdom are part of UK constitutional law and have a long and formative history. This is usually considered to have begun with Magna Carta of 1215, a landmark document in British constitutional history. Development of civil liberties advanced in common law and statute law in the 17th and 18th centuries, notably with the Bill of Rights 1689. During the 19th century, working-class people struggled to win the right to vote and join trade unions. Parliament responded with new legislation beginning with the Reform Act 1832. Attitudes towards suffrage and liberties progressed further in the aftermath of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-Fyfe, led the drafting of the Convention, which expresses a traditional civil libertarian theory. It became directly applicable in UK law with the enactment of the Human Rights Act 1998.
A reception statute is a statutory law adopted as a former British colony becomes independent by which the new nation adopts, or receives, the English common law before its independence to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, as well as the precedents originating from it, as the default law because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state.
Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament on reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.
Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.
In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.
Article 15 of the European Convention on Human Rights allows contracting states to derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation".
The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum. In the Eastern Catholic canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.
In September 1967, Denmark, Norway, Sweden and the Netherlands brought the Greek case to the European Commission of Human Rights, alleging violations of the European Convention of Human Rights (ECHR) by the Greek junta, which had taken power earlier that year. In 1969, the Commission found serious violations, including torture; the junta reacted by withdrawing from the Council of Europe. The case received significant press coverage and was "one of the most famous cases in the Convention's history", according to legal scholar Ed Bates.
So that by their original constitution the jurisdiction of the court of common pleas, king's bench and exchequer, was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and misdemeanors that amount to a breach of the peace, the king being then plaintiff, as such offenses are in open derogation of the jura regalia of his crown
The prohibition of torture has since been elevated to jus cogens, thus recognizing that it is so fundamental that it supersedes all treaties and customary laws".
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