Judicial Dissents: Why Are Th ey Gaining Popularity?

O.A. Krapivkina, PhD in Philological Studies Assistant Professor of Applied Linguistics Department, National Research Irkutsk State Technical University, Irkutsk, Russia

One of the main principles of judiciary is the independence of judges. According to Article 120 of the Constitution of the Russian Federation[1], judges shall be independent and submit only to the Constitution and the Federal Acts. Among the tools to provide the independence of judges one can mention the institute of dissenting opinions – a possibility for the judge who has remained in the minority in the voting to add his individual voice to the institutional position of the majority. However, questions arise over the dissenting opinion. Does it endanger the unity of the court, undermine its authority, or does it democratize the judiciary, and make it more transparent? Does it weaken the objectivity of the majority opinion, or does it strengthen its authority and credibility?

Although the right of the Russian judges to dissent is deeply rooted[2], Russia generally disallowed to publish dissenting opinions, principally because of the emphasis on collegiality in the dispensation of justice. So the issue of dissension in judiciary has largely escaped Russian academic attention. This issue has only seldom made appearance in contemporary academic researches[3].

After all, the introduction of dissenting opinions is a sign of how far thinking about the judiciary has changed in Russia over the past decade.

Definition and types of judicial opinions

A judicial opinion is an opinion of a judge or a group of judges that accompanies and explains an order or ruling in a controversy before the court, laying out the rationale and legal principles the court relied on in reaching its decision. Its primary function is to challenge the arguments upon which the majority opinion is based. It presents arguments for interpreting a legal text in a different way than the majority of the Court does.

In Anglo-Saxon judiciary judicial opinions are of two types - concurring opinions (concurrences), and dissenting opinions (dissents). A concurrence is a written opinion by one or more judges which agrees with the decision made by the majority, but states different reasons as the basis for the decision. A dissent is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. The dissent is different from the concurrence, which agrees with the Court's decision but provides an explanation that differs from the majority opinion. The dissent is more expressive and emotional.

The Russian legislation, for example, distinguishes between a “dissenting opinion” (osoboe mnenie) and an “opinion” (mnenie). In the Constitutional Court Act (1991)[4], the latter refers to “opinions concerning disagreement with the majority of judges” when a dissenter votes for the essence of the final decision but challenges the reasoning of the majority opinion. As a matter of fact, they are equivalent to the concurring opinions of common law courts. According to our analysis, they are very uncommon and not popular among the judges of the Russian Constitutional Court.

Dissenting opinions vs. majority opinions

The specific character of the dissent, its individualistic tone, special purposes, and functions in legal communication are the traits differing from the majority opinion.

In contrast to the majority opinion, the dissenting opinion is not a prescriptive document. It serves different purposes:

1) supplementing, interpreting, or challenging the reasoning of the majority opinion,

2) evaluating the majority opinion,

3) revealing its errors,

4) voicing disagreement with the Court’s final decision.

Another difference between the dissent and the majority opinion is the nature of the author’s position. According to R. Ferguson, judicial opinions are characterized by four traits: “the monologic voice, the interrogative mode, the declarative tone, and the rhetoric of inevitability”[5]. The monologic voice enables the Court, composed of several individuals to speak with one voice. The interrogative mode frames the case’s question and then responds within the established framework. The declarative tone answers the legal question and the rhetoric if inevitability creates the sense that the Court decided the case in the only manner possible.

Dissents’ authors express their personal points of view and values, speak on their own, while majority opinion’s authors voice the position of the court and speak for the institutional body.

The second difference follows directly from the first one - rational and logical elements in the majority opinion against emotional and expressive features in the dissent. Formal style of writing typically used in the majority opinion gives place to the metaphorical language of the dissent. A judge becomes a semiotically central category of discourse, positioning him - or herself as a person free from institutional constraints, revealing personal feelings on the matter at issue.

The right to voice an individual viewpoint challenging the position of the Court gives the sense of freedom, independence, and personal responsibility.

C.L. Langford following Ferguson’s lead argues that dissenting opinions are characterized by four traits: “an individualistic tone, a skeptical voice, a democratic standard, and an advocacy medium”[6].

In the dissent, the judge is allowed to position him/herself as a subject of free will deliberately determining discourse. The judge expresses his/her opinion in a tone that is reflective of his/her personal view about the legal issue. The first-person singular pronoun helps him/her produce a phenomenological personalized statement.

Dissenters are freed to express themselves unrestrained by majority structures. Some dissents are very short, while others are even more extensive than the majority opinions[7]. Dissenters can use any tone - polite, diplomatic, caustic, sarcastic, or even hostile, as they voice the individualistic position liberated from the constraint of speaking for the institutional body. They can be disdainful, ironic, often hostile, and superior, or always respectful. Some of them opt for less confrontational language, never criticize the majority, limit their references to the majority opinions. Others, on the contrary, choose to attack their colleagues, the arguments their opinion is based upon, and their final decision.

Having the purpose to undermine the authority of the Court and its members as keepers of the Constitution, they attack their decision, challenges the validity of their reasoning and position, questions their peers’ legal expertise. They oppose their own views to the majority opinion which they deem to be untrue and incorrect.

Arguments for and against dissenting opinions

One of the arguments against dissenting opinions is that they, as C.L Langford states, “endanger the unity of the court, dismember the body of the court giving voice to alternative legal visions”[8]. “Dissenting opinions are considered to endanger the integrity of the majority opinion, to cause confusion in understanding it, to dilute its obligatory force, to reveal judges’ political bias”, D.A. Basangov claims. Dissents endanger the authority, prestige and legitimacy of the court, weakening the court’s credibility[9]. They undermine the belief in objectivity of judicial decisions. Personalized judiciary can not be objective, many researchers believe.

The belief that dissent is a symptom of dysfunction is shared with many US judges, the most famous of which is John Marshall, who regularly curbed his own viewpoints, preferring to arrive at decisions by consensus. One of his arguments is that dissenting opinions weaken the judicial body by exposing internal divisions publicly.

Dissents are a pernicious waste of time, they cause uncertainty in the law, shake the public’s faith in the courts, and are fundamentally inconsistent with the nature of judicial authority, some other opponents believe. They claim courts should speak as anonymous institutions, not as groups of individual judges[10].

Some other arguments against the dissenting opinion are its individualistic nature and the breach of the secrecy of deliberations.

Arguments in favour of dissenting opinions are as follows:

1) The dissent is a guarantee of judicial independence. It guarantees the dignity to judges who remained in the minority and enables them to decide by their conscience, and not by the majority[11].

2) The dissent is a way to democratize the judicial system, a kind of a tuning fork of the judicial reform[12]. Dissents have a democratizing effect on the Court via the possibility to deliver different opinions which are not in conformity with the majority opinion. D. Cole claims, the existence of conditions “for rhetorical struggle in the structure of judicial decision-making gives the dissent its influence”[13]. The “marketplace of ideas” belief holds that the truth arises out of the competition of various ideas in free, transparent public discourse. Different ideas and opinions are free to enter into the “marketplace”.

3) The right to a dissent individualizes judges, helps them position themselves as independent and responsible members of the judiciary. Dissents increase the Court's responsibility by forcing the majority to refine its opinion. Dissents augment the Court's stature by forcing “the majority to refine its opinion” and making the Court “not just the central organ of legal judgment . . . [but] center stage for significant legal debate, Justice Scalia writes”[14].

4) The dissenting opinion provides alternative interpretations of the Constitution. It compromises “the authoritarian character of the law”[15]. Dissent is considered “a healthy, and even necessary, practice that improves the way in which law is made”[16].

5) The availability of dissents to the public makes the majority of judges better feel their responsibility for their decision.

6) The dissenting opinion “ensures the effective functioning of the courts and promotes public debates, it opens a dialogue among the judges and legal scholars, between the commentators of court judgments and the legislators” [17].

7) The dissenting opinion creates the necessary prerequisites for scientific doctrines. Dissenting opinions communicate legal theories to other justices, lawyers and politicians, and have sometimes turned into good law later on as a result of this.

On the basis of the foregoing, it can be concluded that dissents 1) guarantee judges’ independence, freedom of speech, 2) enhance judges’ responsibility for decision-making, 3) democratize the judiciary, 4) serve as an alternative interpretation of the law, 5) attract public attention to legal issues, 6) influence lower courts decisions.

The answer to the question concerning the rationale and usefulness of dissents in the judiciary depends on the legal tradition of the nation - the tradition to extend powers of the judge and democratize the judiciary, or to limit judge’s independence by prohibiting any forms of individualistic writing that dismember the integral body of the court in which “the individual members are merged into a unit constituting a distinct department”[18].

1. A.L. Kononov. Pravo na osoboe mnenie [The Right on Dissenting Opinion] // Zakon [Statute]. 2006. № 11. pp. 26–34.
2. A.N. Vereshchagin. Judicial Law-Making in Post-Soviet Russia. NY : Routledge, 2007.
3. C.L. Langford. Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars // Communication Law Review. 2009. № 2. Vol. 9. p. 1.
4. D. Cole. Creative Misreadings in the First Amendment Traditions // Yale Law Journal. Vol. 95. 1986. p. 857.
5. D.A. Basangov. Pravovaya priroda osobogo mneniya sud’i Konstitutsionnogo Suda Rossiiskoi Federatsii. [The Legal Nature of Dissenting Opinion of the Judge of the Russian Federation Constitutional Court] // Zhurnal Rossiiskogo Prava [Journal of Russian Law]. 2006. № 2. pp. 24–34.
6. J. Laffranque. Dissenting Opinion and Judicial Independence // Juridica International. Vol. VIII. 2003. pp. 162–172.
7. R.A. Ferguson. The Judicial Opinion as a Literary Genre // Yale Journal of Law and Humanities. 1990. № 2. pp. 201–219.
8. R.A. Posner. The Problems of Jurisprudence. Cambridge: Harvard University Press, 1990. p. 461.
9. Scalia. The Dissenting Opinion, Address Before the Supreme Court Historical Society // Journal of Supreme Court History. June 13, 1994. p. 39.
10. W.J. Brennan. In Defense of Dissents // Hastings Law Journal. Vol. 3. 1986. p. 134.