Dissenting opinions should be abolished UK
Caroline Vernet Leduc e1002041842 Ecole de droit de la sorbonne
Université Paris 1 – (Panthéon Sorbonne)
Master 2 Recherche Mention droit comparé droit anglo-américain des affaires
Année 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 opinion1. The one of the majority of the court on a legal issue with regard to facts and 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, dissenting opinions are a familiar feature of judicial process of most Common Law systems. Hence, one can wonder if dissenting opinions should be abolished from English judicial practice.
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 debates on the basis of transparency during the process of decision-making. From this
Université Paris 1 – (Panthéon Sorbonne)
Master 2 Recherche Mention droit comparé droit anglo-américain des affaires
Année 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 opinion1. The one of the majority of the court on a legal issue with regard to facts and 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, dissenting opinions are a familiar feature of judicial process of most Common Law systems. Hence, one can wonder if dissenting opinions should be abolished from English judicial practice.
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 debates on the basis of transparency during the process of decision-making. From this
Bibliography: Cases Free City of Danzig and International Labour Organization, Advisory Opinion, 1930 P.C.I.J Marburry v Madison, I cranch 137, at 177 (US 1803) Pollock v 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 conférences annuelles sur les méthodes de jugement Carter , JW 'Dissenting opinions ' 4 Hastings LJ, 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 'études Jacques Georgin C.E.G Hand, BL 'The Bill of Rights ' 1958, Harvard University Press Hirt, WE 'In the Matter of Dissents Inter Judices de Jure ', 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 n° 8 Mashall, J 'Dissenting Opinions ', 1937, Law Quarterly Posner, RA 'How Judges Think ', 2008, Harvard University Press Stager, W 'Dissenting Opinions 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