Caroline Vernet Leduc e 1002041842 Ecole de droit de la sorbonne Universit?© Paris 1 – (Panth?©on Sorbonne) Master 2 Recherche Mention droit compar?© droit anglo-am?©ricain des affaires Ann?©e universitaire 2013-2014 1st Semester Sources et techniques en droit anglais Ruth Sefton-Green The Dialogue of English Justice Mid term assignment Subject 2: Dissenting opinions should be abolished from English Judicial practice. Discuss. The English Judiciary tradition consists in Judgements built on a serie of each Judge’s opinionl .
The one of the majority of the court on a legal issue with regard to facts nd the explanation of its reasoning is drawn up as the court Judgment. 2 A dissenting opinion is a minority opinion expressed by one Judge or Jointly by several judges who disagree with the decision reached by the majority in the case. 3Thus, there may be dissenting opinions only when there are several Judges in a court and when their opinions are revealed to the public. Also, an opinion can differ from the majority because of its conclusion and its reasoning or its reasoning only.
Most of the countries with a continental system exludes separate opinions. On the other hand, issenting opinions are a familiar feature of Judicial process of most Common Law systems. Hence, one can wonder if dissenting opinions should be abolished from 1 . The Influence of the dissenting opinions on the impact of English decisions In both the Supreme Court and the Court of Appeal, dissenting opinions came from the conference between Judges before the decision had been taken. In the debate, the different opinions fought with specific legal arguments.
Unanimity is rare, nuances are welcome and oppositions are allowed. The advantage of dissenting opinions is that they gave force to rationality by showing the quality of the legal ebates on the basis of transparency during the process of decision-making. From this point of view, they do not weaken the decision but make it stronger as they are the proofs that the Judges’ decision is built on a confrontation of ideas, legal concepts and deep reflexions. According to Justice Jesse W.
Carter4, if the majority is perfectly right, the dissenting opinions make his position even clearer. Thus, the publication of a dissenting opinion may highlight the legal debate between Judges. 5 Plus, it is difficult to deny that law is not an exact science. Hence, you cannot prove your nswer6 it must be constantly tested by reason. Dissenting opinions challenge law by testing it. Therefore, despite the fact that a dissenting opinion cannot change the result of a case where it is made, it ‘may salvage for tomorrow the principle that was sacrificied or forgotten today’. However, Judgements are followed because they are authorities in England as a Common Law country, and not because people admire their reasoning. Then, a decision taken by a majority which can be short can hardly impose his authority when certain members of the Jurisdiction show their opposition y expressing a dissent with a strong legal argumentation. The risk is particularly important in a case of sharing of votes when the decision had been taken only thanks to the vote of one or two Judge. Also, the authority and the prestige of English courts of last and intermediate ressort may be downgraded if too many dissenting opinions contradict or attack each other. Then, particularly concerning criminal appeals, the court should not look divided as it deals with an English citizen’s liberty. 9 Indeed, as Bloom-Cooper and Drewry10 declared, the punishment from the Criminal division of he Court of Appeal itself may be more difficult to accept with a dissent without binding effect. Also, one may wonder if Judges have to conciliate different answers or add different opinions.
Everyone who participates to the elaboration of a Judicial decision and has an opinion about it also have the assumption that there is also something valuable in the other’s opinion. Judges should look for a consensus. Nobody can deny that the Judge has the duty to fight for his opinions and has also a duty to the parties and the public. However, by allowing the dissenting opinions, each udge may content with his first view about the case instead of searching a consensus which would be as right as possible according to all the Judges of the bench.
Thus, dissenting opinions may strenghten or not the authority of the English courts depending of the way Judges dissent. 2. Dissenting opinions and credibility of the courts Judge Learned Hand of the United States Federal Court of Appeal said that dissents collegiality. ll Indeed, in their debates the Judges can differ in their opinion concerning the law applicable to the facts and should be obliged to come to a unified conclusion. Indeed, after a majority has reached a conclusion, it becomes the opinion of the Court, and the debate should be closed.
A Judge should not carry to discuss the case, give the reasons for his dissent nor criticise the majority opinion. By giving a judgement with a divided authority, the court suffers for a loss of prestige. The public is looking for courts to be the source of legal wisdom but it is not possible when the Court is divided against itself. 12 The dissenter may add confusion to the law by turning the spotlight away from the issues of the case and keeping it focused upon himself. 3 Indeed, in Pollock v. Farmers’ Loan and Trust Company14, Mr.
Justice White declared that dissenting opinions weaken the effect of the opinion of the majority that is to say the conclusions of the highest courts. It is true that dissenting opinions are enlighting , moreover, the dissent of a Judge tends to lessen respect for the courtl 5 despite the fact that only the majority opinion has a binding effect. Also, we may wonder if the dissenting opinions weaken the credibility of the Judges by weakening their independence as the fact that the decision are not anonymous protect them from threats.
The Judicial function of the Judges is supposed to make them forget their political opinions. However, thanks to the dissenting opinions, a personal vote is public, therefore it may be possible that people will explain and criticise a Judge’s opinion by his political opinions and then conclude that Judges are influenced by their political background. Therefore, one disavantage of the dissenting opinions is the fact that they weaken the credibility of the Judges. 3.
Abuses of dissenting opinions First, we must remember that the actual aim of dissenting opinions is not criticise the udgement of the court itself. Indeed, as Judge Anzi-lotti said in Free City of Danzig16 ‘a dissenting opinion should not be a criticism of what the court had said, but rather an exposition of the views of the writer’. A dissent should express disagreement without being disagreeable. 17 This point must stay in mind of the potential dissenters in order to maintain the authority and the credibility of the highest courts in England.
Sometimes a Judge dissenting from a decision do not write a dissenting opinion nor concur in another one but his dissent is shown by a brief note following he majority opinion saying: ‘Mr. Justice X dissents’. Moreover, often, Judges dissenting do not only give the points on which they dissent, but also give their views at considerable length. This can make the case difficult to read and to understand by creating confusion with the majority opinion. 18 Sometimes, long dissenting opinions may be considered like long academic writings which would be useless for the judiciary function.
Hence, the problem is that there is currently no limitation of length and some Judges are not able to limit themselves. One might wonder if the ime and the cost spent to write these dissenting opinions would rather be used to examine other pending cases. 19 Another side effect would be that if in the Court of Appeal, there is a strong dissenting opinion in favour of the losing party, it can influence him to go to the Supreme Court, which would be an additional cost for the even if their position is not really interesting from a legal point of view, they dissent for self-publicity20.
Hence, these Judges are not really willing to give a useful contribution if they are never able to integrate their opinions in the majority one. Plus, the habitual dissenters may weaken their own credibility and the one of the other Judges. This phenomenon has another side effect. Indeed, because of collegiality in Senior courts of England, there must be cooperation between the judges of the bench. Moreover, dissent may fray collegiality. 21 If a Judge dissents too often, the other Judges may be annoyed by paying less attention to him in next cases. 2 Thus, the abuses of dissenting opinions in English courts seem to be their main drawback. 4. Alternatives to the current system in England. An option would be that the dissenting opinions would be published anonymously by utting at the end of the Judgement a brief notice written by the Judges having this opinion, probably with the control of the other Judges to avoid different polemics such as political ones or dissenting opinions written for self-publicity.
In a way, this principle exists in certain countries like France in which the deliberations are secret, as the public does not know the personal opinions of the Judges about the case. The disadvantage of this option would be that, as Sir Percy Spender wrote in the case of the Temple Preah Vihear23, naturally, persons raise the same issues by different ays, and this is the same with legal questions.
As we admitted that dissenting opinions have an interest such as improving the reflexion and developing the law, therefore, there is a risk that some interesting ideas for the case or for future cases would be missed. Another option would be limiting the possibility to write dissenting opinions only when the case raises important legal questions or may be controversy. In these cases, Judges have to find a fair balance having in mind the public interest. Hence, the publication of dissents may be important as the aim of the decision and he decision itself have to be evaluated by the Judges themselves.
On the other hand, Mr. Justice Brandeis24 circulated dissenting drafts but withdrawn them when he thought the majority opinion was unlikely to cause real harm. 25Therefore, it would be a good alternative to the current system if Judges could limit themselves by publishing dissenting opinions only when they are really useful. Dissenting opinions are admissible in some Common Law countries because they are linked to the system in which courts function when exercising their Jurisdiction and
English Judges have a main role in the legislative process26 The continental European Judges consider themselves as public officials instead of the real expositor of the law with independence against other organs of administrations. In the English courts, the function of the Judge is not merely to apply a abstract rule to facts, but to formulate rules which he may apply and give their opinion on troublesome points of law27 as their rulings will then become precedents for future cases.
Therefore, the question cannot be about abolishing dissenting opinions. However, Judgements given y a weak majority have not the same weight that the ones given by a unanimous court. Therefore, dissenting opinions should be discouraged in a way that if unanimity can be obtained without great sacrifice of conviction, Judges should choose to build a solid conclusion with a unanimous decision to muster a single coherent binding rule. 8 Yet, unanimity obtained at the cost of strong conflicting views is not desirable as one characteristic which guaranty the credibility of the English Courts is the independence of Judges. Hence, within these limits, dissent is not only a right but hould be regarded as a duty29, despite the idea that the practice of dissenting should be used strategically in a way Judges would limit themselves30 Words count: content without footnotes and bibliography: 1999 Bibliography Cases Free City of Danzig and International Labour Organization, Advisory Opinion, 1930 P.
C. I. J. (ser. B) NO. 18 (1926) Marburryv Madison, I cranch 137, at 177 (US 1803) Pollock v. Farmers’ Loan and Trust Company, 157 U. S. 429 , 608 Judgment of 15 June 1962, ICJ, the Hague Other sources Alder, J ‘Dissents in Courts of Last Resort, Tragic Choices , 2000, Oxford Journal of
Legal Studies vol 20 Ancel, J-P, ‘Les opinions dissidentes’, 2005, Cycle de conf?©rences annuelles sur les m?©thodes de Jugement Ginsburg, RB ‘The 20th annual Leo & Barry Eizenstat Memorial Lecture: The role of dissenting opinions’ 2007 Blom-Cooper, LJ and Drewry, G ‘Final Appeal: a Study to the House of Lords in its Judicial Capacity’ 1972 Oxford Clarendon Press Carter , JW ‘Dissenting opinions’ 4 Hastings L], 1953 Douglas, WO ‘The Dissent: A Safeguard of Democracy 32 Journal of the American Judicature Society, 1948 Georgin,J ‘Les opinions dissidentes dans les Juridictions : Note introductive’, 2003, centre d’?©tudes Jacques Georgin C.
E. G Hand, BL ‘The Bill of Rights’ 1958, Harvard University Press Hart, HLA The concept of Law (2nd edition, Clarendon Press) (“A supreme tribunal has the last word in saying what the law is and, when it has said it. “) Heydon, JD ‘Threats to Judicial indepedence:the enemy within’ 2013, Law quaterly Review Hirt, WE ‘In the Matter of Dissents Inter Judices de lure’, 1960, Pennsylvania Bar Association Quarterly Laffranque,J ‘Dissenting opinion and Judicial independence’, Juridica International VIII, 2003 Luchaire, F and Vedel, G La transposition des opinions dissidentes en France est-elle souhaitable? , 2000, Cahiers du Conseil constitutionnel no 8 Mashall,J ‘Dissenting Opinions’, 1937, Law Posner, RA ‘How Judges Think’, 2008, Harvard University Press Stager, W ‘Dissenting Opinions. Their Purpose and Results’ , 1925, Virginia Law Review Black’s Law Dictionary, Standard Ninth Edition Walbolt, SH and Zimmerman, SC ‘l must dissent. Why Florida Bar Journal, 2008, p35 Wood, DP ‘When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court’, 2012, California Law Review