Derogation, in civil law and

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

, is the partial suppression of a law. In contrast,

annulment Annulment is a legal procedure within Law, secular and Religious law, religious legal systems for declaring a marriage Void (law), null and void. Unlike divorce, it is usually ex post facto law, retroactive, meaning that an annulled marriage is c ...

is the total abolition of a law by explicit

repeal A repeal (O.F. ''rapel'', modern ''rappel'', from ''rapeler'', ''rappeler'', revoke, ''re'' and ''appeler'', appeal) is the removal or reversal of a law. There are two basic types of repeal; a repeal with a re-enactment is used to replace the law ...

, and

obrogation In civil law, obrogation (Latin: ''obrogat'' from ''obrogare'') is the modification or repeal of a law in whole or in part by issuing a new law. In canon law, of the Catholic Church, obrogation is the enacting of a contrary law that is a revocatio ...

is the partial or total modification or repeal of a law by the imposition of a later and contrary one. It is sometimes used, loosely, to mean abrogation, as in the

legal maxim A legal maxim is an established principle or proposition of law, and a species of aphorism and general maxim. The word is apparently a variant of the Latin , but this latter word is not found in extant texts of Roman law with any denotation exac ...

''lex posterior derogat priori'' ("a subsequent law derogates the previous one"). The term is also used in

Catholic canon law The canon law of the Catholic Church ("canon law" comes from Latin ') is "how the Church organizes and governs herself". It is the legal system, system of laws and canon law, ecclesiastical legal principles made and enforced by the Hierarchy of the ...

,Manual of Canon Law, pg. 69 and in this context differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.

Statutory interpretation

Under the derogation cannon of statutory interpretation "statutes in derogation of the common law" should be narrowly construed.

Terrorism

A UK law permitting warrantless arrest and detention on suspicion of terrorist involvement was found to violate protected rights, according to the ECHR decision in '' Brogan v. The United Kingdom'' in which the court reviewed the arrest of four persons arrested in

Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...

under a 1984 British law allowing a special powers derogation from the normal proscription of warrantless arrests.

Civil law

European Union law

In terms of

European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...

legislation, a derogation can also imply that a member state delays the implementation of an element of an EU

Regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...

(etc.) into their legal system over a given timescale, 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).

Catholic canon law

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 Intersex people are individuals born with any of several sex characteristics including chromosome patterns, gonads, or genitals that, according to the Office of the United Nations High Commissioner for Human Rights, "do not fit typical bin ...

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 Zoning is a method of urban planning in which a municipality or other tier of government divides land into areas called zones, each of which has a set of regulations for new development that differs from other zones. Zones may be defined for a si ...

to a particular business, while a general rezoning applied to all properties in an area is more analogous to derogation.

References

Bibliography

* Della Rocca, F. (1959) (trans. Rev.

Anselm Thatcher Anselm may refer to: People Saints * Anselm, Duke of Friuli (s), Benedictine monk and abbot Nonantula * Anselm of Canterbury (c. 1033–1109), philosopher, Abbot of Bec, and Archbishop of Canterbury * Anselm of Lucca (1036–1086), better known a ...

O.S.B. , image = Medalla San Benito.PNG , caption = Design on the obverse side of the Saint Benedict Medal , abbreviation = OSB , formation = , motto = (English: 'Pray and Work') , found ...

), ''Manual of Canon Law''. Milwaukee: The

Bruce Publishing Company The English language name Bruce arrived in Scotland with the Normans, from the place name Brix, Manche in Normandy, France, meaning "the willowlands". Initially promulgated via the descendants of king Robert the Bruce (1274−1329), it has been ...

External links

''Catholic Encyclopedia'' Derogation
Civil law (legal system) European Union law Emergency laws Catholic Church legal terminology {{constitutional-law-stub