Dissents in courts of last resort: Tragic choices?
| Abstract | A democratic society does not embody a permanent and internally consistent set of values but attempts to accommodate disagreement between incommensurable values. One of the purposes of the law is to manage such disagreement by ensuring that disputes are settled in a way that advances the interests of stability without foreclosing options. In this respect the function of the formal dissenting judgment has been neglected in the English literature. By contrast there is a rich US literature which reveals an ambivalent attitude to the practice of dissent. The article discusses the nature of the disagreements that are predominant in dissenting judgments. It claims that the practise of dissent follows the development of democracy and that the majority of dissents in courts of last resort raise legitimate disagreement about fundamental incommensurable values. These concern disagreements between deontological and consequentialist values, between different conceptions of the legislative powers of the judiciary and between principle and pragmatism. Because the outcome of an appeal is contingent, the dissent may be as important as the majority in identifying the choices to be made and signalling the principles that are immanent in the law. The legal and political basis of the right to publish a dissent is discussed and arguments for and against the publication of dissents considered with the conclusion that constraints on the right to dissent would be self-defeating | |||||||||
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Similar books and articlesBert Gordijn (2001). Regulating Moral Dissent in an Open Society: The Dutch Experience with Pragmatic Tolerance. Journal of Medicine and Philosophy 26 (3):225 – 244.
Brian Barry (1984). Tragic Choices:Tragic Choices. Guido Calabresi, Philip Bobbitt. Ethics 94 (2):303-.
Giovanni Sartor (2010). Doing Justice to Rights and Values: Teleological Reasoning and Proportionality. Artificial Intelligence and Law 18 (2):175-215.
Matthias Kiesselbach (2009). Warring Tautologies: Moral Dissent From a Cognitivist Perspective. Ethic@ 8 (1):125-145.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
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