Dissenting Judgments

In his 8 October speech entitled ‘Dissenting Judgments – Self Indulgence or Self Sacrifice’, Lord justice Kerr of the UK Supreme Court poses this interesting question: “Should the possible future utility of a dissent encourage, or should the apparent futility of a dissent deter an expression of disagreement with the majority? And should the circumstance that the dissent is to be expressed in a final court of appeal make a difference?”

Are dissents in courts of final appeal “poignant judicial tragedies” offensive to conventions of certainty and unanimity, as some commentators have said?

Do they weaken the effect of the opinion of the majority and undermine confidence in it?

Should dissent, in particular kinds of cases, be discouraged?

These are the kinds of questions that are addressed in the speech. His Lordship concludes, in part,”certainty or finality in the law is an overrated concept.”

You can read the speech here.

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Comments

  1. What is the effect of a single dissenting judge at the Supreme Court of Canada when the judgment is issued from the bench as was done last week in 2012 SCC 50 (http://canlii.ca/t/ft8hn)?

  2. I thought that the speech was humourous, nicely written and wise. Thank you for the link to it. http://www.supremecourt.gov.uk/docs/speech-121008.pdf

  3. After reading Lord Justice Kerr’s speech, I am pleased to know that social interaction doesn’t stop at the UK SC bench. For me, this speech (with due respect) was somewhat like under cooked pasta…not quite right.
    My plebeian perspective stems from the basic concept that a well-reasoned and justified dissent(s), like the majority, are comprised of independent and fairly minded “voice(s)”. In a democracy, individuals should be able to express their differences. Frankly, I am not really sure what the purpose of his speech was unless he wants to moderate a debate on the topic? The only real uncertainty for the judicial system would be the absence of any voiced dissent when one is truly warranted. I enjoy reviewing judgments where the majority and dissent is served together (pasta al dente), a la court.