Dissenting opinions should be abolished UK Essay Example For Students

Dissenting opinions should be abolished UK Essay 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 Judges 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 citizens 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 others 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. Alexander the Great EssayAs 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 Blacks 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