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Statement of reasons for a dissenting opinion as a dialogical utterance on the example of selected rulings of the Polish Constitutional Tribunal

Dr Maciej Wojciechowski

University of Gdańsk


English abstract:
This paper claims that the statement of reasons for a dissenting opinion is a dialogical utterance. Due to the limitations imposed by the secrecy of judicial deliberations it is impossible to describe the direct exchange of arguments between the members of a judicial panel. To some extent, however, we can assume that the presented opinion of the court and a dissenting opinion represent the end result of such deliberations. It is not the same, however, to call both of them examples of dialogue. Real-time dialogue consists of a multitude of utterances of people taking part in a discussion. In the case of the final statement of reasons of the judgment and of the dissenting opinion, the number of utterances is in general limited to two separate large blocks of sentences, each block being one utterance. For this reason we can distinguish between the notion of ‘dialogue’ and that of ‘dialogical utterance’. Such a distinction was proposed in Polish theory of literature in the 1970s by J. Lalewicz. According to Lalewicz, a dialogical utterance depends on the preceding opinion, and its main feature is the ability to become a reference to that opinion. Apart from presenting forms of dialogicality, the article aims to explain these forms by presenting features other than the personal style of legal writing of a given judge. Three factors that might explain the higher or lower level of dialogicality in dissenting opinions are presented. The first factor is of an institutional nature, that is, the way work in the court is organised. The second factor is what I call a potential for an argument. Finally, the third one is the axiological importance of a given case.

Keywords: dissenting opinion, dialogical utterance, dialogue, judicial deliberations, statement of reasons for a court judgment, Constitutional Tribunal, legal disagreement

Language: Polish

Received: 06.06.2017
Accepted: 22.08.2017

Published: Number 1(16)/2018, pp. 69-82.

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Filed Under: Articles Tagged With: Constitutional Tribunal, dialogical utterance, dialogue, dissenting opinion, judicial deliberations, legal disagreement, Maciej Wojciechowski, statement of reasons for a court judgment

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Keywords

thick properties in dubio contra reo state of exception Scott J. Shapiro formalization conflict management paternalism justification of punishment Mateusz Stępień cognitive psychology weighing the rightness phenomenological philosophy justice as fairness animal rights economic theory of law Andrzej Malinowski Przemysław Kaczmarek The Separation Thesis human rights Magdalena Małecka health care Marta Chmura Marta Soniewicka doxa Błażej Kmieciak trial intention interpretation ontologically creative personalistic dialogue Katarzyna Hanas exercise of power extensive interpretation law and language legal guarantees of advocates’ activity Social Insurance Institution radosław zyzik Tomasz Widłak Berlin Wall protection of the memory of the deceased political theology freedom of the ancient and modern meaning Hohfeldian incidents Georgii Sibirtsev responsibility of a professional universalism judicial discretion Agamben legitimacy CLC

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