Separate and Dissenting Judicial Opinions and Their Significance for a Democratic Society. Reflections Against the Background of Polish Law

1. Introduction

Legal conflicts are inherent in the functioning of any community, and the responsibility for their peaceful resolution is borne by public authorities. Nowadays, this task is carried out by properly formed judicial bodies, whose composition and the competences required of judges differ depending on the difficulty and importance of the dispute to be resolved. Consequently, specialized courts and tribunals are often set up to deal with cases of greater factual or legal complexity, and usually the administration of justice is then entrusted to a judicial panel consisting of several, a dozen or even dozens of persons. In such cases, it becomes necessary to determine how the content of the judgment is decided. Theoretically, possible solutions include, on the one hand, the requirement of a unanimous decision,² and, on the other, resorting to qualified or simple majority voting.

If the legislature allows a particular court or tribunal to make decisions by a majority vote, it means that it accepts the possibility of outvoting at least one member of the panel. Depending on the procedural model adopted, the lack of unanimity of the panel may remain undisclosed to the parties, it may be disclosed only at the request of the dissenting judge, or it may be transparent to the parties and the public.³ In addition

to the right to overtly express their dissent with the content of the judgment through the voting act, it is possible to grant the outvoted judge the right to formally write down their dissent with a certain resolution, along with the right or obligation to justify the dissent.⁴ This latter case is called a dissenting opinion (votum separatum, contravotum),⁵ which is most often defined in the legal literature as a formal written report outlining

the rationale that a member of the panel relied on when voting against the majority opinion and in favour of a dissenting resolution, also outlining this resolution.⁶ The institution of dissenting opinion is not universally endorsed. For this reason, the advantages and disadvantages of filing the judge’s dissent from the court judgment are worth investigating. Consequently, the aim of this article is to establish if there is a rationale available to assess decisively whether it is the advantages or disadvantages for the judges, parties and, more broadly, for the functioning of justice that prevail. The ultimate objective of the study is to pinpoint the role that transparent justice has for a democratic society, including the transparency resulting from public disclosure of the reasons for dissent.

Among European countries, Belgium, France, Italy, Luxembourg, Malta, the Netherlands, and Austria are clearly averse to the solution. Other European states allow dissenting opinions, although this institution was introduced into their legal systems at various times and the detailed regulations of the issue are extremely diverse.⁷ In the Polish legal system, the institution of dissenting opinion is applicable in ordinary courts, administrative courts, the Supreme Court, and the Constitutional Tribunal.⁸ The right to file a dissenting opinion is also provided for in the Code of Canon Law.⁹ As far as international tribunals are concerned, dissenting opinions are allowed in the European Court of Human Rights,¹⁰ the International Court of Justice,¹¹ the African Court on Human and People’s Rights,¹² and the Inter-American Court of Human Rights.¹³ Nonetheless, the regulations on the Court of Justice of the European Union do not provide for the possibility to file dissent,¹⁴ which is in order to safeguard the authority of this institution – still considered insufficiently established.¹⁵

2. The essence of dissent

From a logical point of view, a dissenting opinion may be filed only if a judgment is made by a collegial body, and when the dispute is so significant and the arguments on both sides so strong that it cannot be resolved in the course of investigation and mutual negotiating of the views held by the judges.¹⁶ At the same time, the outvoted member of the panel deems it imperative to unequivocally mark their dissenting position in the form prescribed by procedural law.¹⁷ A prerequisite for being able to file a dissenting opinion is voting against a particular ruling.¹⁸ However, a vote against alone cannot qualify for filing a dissenting opinion.¹⁹ At the same time, it is not always (unless the law provides otherwise) required that a judge who disagreed with the majority opinion, and was therefore ‘outvoted’ in the judgment, file a dissenting opinion.²⁰ It seems that the use of this instrument is extremely rare,²¹ and concerns a stark, fundamental disparity of opinions (e.g., as to whether to find a person guilty or acquit; as to whether to accept a motion, or to dismiss it altogether; as to whether to declare a particular provision consistent or inconsistent with a higher-order act). Occasionally, dissent may also serve to satisfy the offended ambition of the outvoted person(s).²² As regards the reasons for the judgment, in principle, the author of the reasons is not overtly stated, since the document is a collective act of the court. In contrast, it is a characteristic feature of a dissenting opinion that it unambiguously identifies its author, both as regards expressing dissent and drafting the reasons.²³ Consequently, one may argue that dissent has a highly individualized character.²⁴ The reasons for a dissenting opinion may in practice take the form of a shorter or longer statement, but the right to dissent may also be executed by merely joining the dissenting opinion presented by another dissenting judge. It is difficult to ignore the fact that the author of a dissenting opinion enjoys much greater freedom of expression – associated with much less responsibility²⁵ – than the author of the reasons for the judgment. The reasons for the judgment provide evidence of a decision-making compromise, weighing of pros and cons, reaching a golden mean, while the reasons for a dissenting opinion show that a compromise was simply and obviously unreachable. Hence, dissent is used to outline

the reasons that preclude agreement. The author of a dissenting opinion can afford a more personal tone (though not always emotional), much more direct criticism of errors in the interpretation or application of the law, unconventional means of expression, examples, references, etc. It is worth advocating for the stance that the reasons for a dissenting opinion should not boil down to simplistic criticism of the majority position, but should rather contain an outline of the dissenting judge’s position on the contested problem.²⁶ Dissent should not be an expression of a kind of vanity, arrogance or a sense of infallibility, but should expound a rather unemotional and rational motivation. Ultimately, a dissenting opinion should not be used to prove who the better judge is, but which solution would be more advantageous.

To wrap up this brief outline of the institution of dissenting opinion, it must be clarified that dissent does not constitute an act of applying the law; in particular, it never represents a binding decision regarding the rights and obligations of a particular legal subject.²⁷ Despite this significant limitation, dissent plays an extremely significant role in a democratic society both at an individual level – in relation to the member of the panel filing dissent, and in relation to the parties to the proceedings – as well in a broader social perspective. This is because, as rightly pointed out by researchers, dissent serves to achieve a variety of objectives related primarily to the law, while the problematic aspects of dissent relate to the fact that these objectives may conflict with one another to a greater or lesser extent.²⁸

3. The advantages of dissent for the outvoted judge

Legal researchers were the first to recognize the vital importance of dissenting opinions for the outvoted judges. They argue that dissent addresses the fundamental attributes of a judicial profession,²⁹ namely the judge’s impartiality³⁰ and independence.³¹ However, it cannot be inferred from the above that judicial independence and impartiality is determined by the power to file a dissenting opinion.³² Certainly, the institution of votum separatum is to a large extent judge-centred³³ since dissent allows them to express their convictions and ambitions, to manifest a personal view

of the case, and to oppose the views of the majority on a particular decision or its justification.³⁴ Dissent allows the judge to maintain intellectual honesty and integrity, to avoid taking moral, and sometimes also legal responsibility for a ruling that they believe is wrong (dixit et salvi animam meam).³⁵ Filing a dissenting opinion proves personal courage and marks a ‘rejection of the temptation of judicial conformity, opportunism or even servility, from which lawyers are not entirely free either’.³⁶ Finally, it is a manifestation of judicial pronouncement anchored in discretion, in accord with one’s conscience; a manifestation of the complete autonomy of thought and decision-making.³⁷ A dissenting opinion makes a particular adjudicator more ‘visible’ because they no longer stand behind the majority, but disclose their position³⁸ and manifest their independence from the other panel members.

Dissenting opinions show not only that the ruling was not unanimous³⁹ but, more importantly, they show how the correct – in the legal sense – outcome may be achieved.⁴⁰ If so, dissent is in fact directed to accomplish much more important tasks than simply making the outvoted judge feel better.

4. Parties to the proceedings and the judge’s dissenting opinion

The systematic rise – over the centuries – of the admissibility of dissenting opinions, and as regards the Polish law, above all, the expansion of their availability to parties other than the judicial panels, shows the ultimate recognition of the fact that dissenting opinions have a vital role to play not only from the point of view of the judges expressing their beliefs, but also from a broader point of view. Dissent has thus gained prominence in the public sphere.⁴¹ It is worthwhile to start by pointing out that filing a dissenting opinion is a crucial factor in terms of psychological support for the losing party since it shows that their arguments were comprehensively considered, and that they had a chance of influencing the case.⁴² Clearly, a dissenting opinion has no direct, ultimate effect on the legal position of the parties. However, it unveils to the parties the significant doubts and dis agreements among the members of the judicial panel that emerged in making the ruling.

A dissenting opinion accumulates arguments against the position of the majority in the panel to justify an alternative judgment or alternative reasons for a particular judgment. The juxtaposition of the reasons for judgment with the reasons for a dissenting opinion may therefore be of fundamental importance for deciding whether to file an appeal, as well as for the content of objections raised in the appeal. In particular, it is not prohibited to refer to the reasoning outlined in a dissenting opinion when constructing the appeal.⁴³

5. Dissent as a crucial factor in shaping social perceptions of justice

Pointing out the advantages of a dissenting opinion in the context of the comfort of the judge and the party dissatisfied with the decision requires that we consider whether they are inferior to the repeatedly presented claims of the negative impact of dissent on how the functioning of the administration of justice. For it cannot be ignored that the disclosure of the lack of decision-making unanimity and the motivation behind dissent undermines the authority, prestige and legitimacy of the court and the judicial decisions. After all, a final, binding decision should be respected, regardless of the underlying motives. In contrast, the more valid arguments are presented in the reasons for a dissenting opinion, the more the perception of infallibility of the judiciary suffers.⁴⁴ The judgment seems as if less unambiguous, less definitive, like an invitation to a discussion rather than an exhaustive decision in a particular case. In fact, dissent creates confusion about the judgment issued, and it undermines the certainty as regards the future rulings in the same subject area.⁴⁵ And this seems in stark contrast with the view of Justice Louis Dembitz Brandeis that ‘stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right’.⁴⁶ It is hard to ignore the argument that the very institution of dissenting opinion threatens the unity, solidarity, and collegiality of the panel, since it may encourage judges to abandon cooperation and mutual persuasion, to stiffen their position and to refuse to seek a common view. For in practice, it either discourages minority judges from discussion, and hence, the decision-making process becomes less collegial,⁴⁷ or it prompts some of them to turn the process into a performance in which they gain publicity by filing dissenting opinions.⁴⁸ The filing of a dissenting opinion leads to the disclosure of individual judges’ views, which can threaten judicial independence, especially in the context of independence from external pressures, or the prospects of a judge being elected for another term. If complete secrecy is maintained, a member of the panel need not fear potential professional consequences because of their views (e.g., denied promotion, demands for political declarations).⁴⁹ Finally, it cannot be overlooked that there are several practical reasons against the institution of dissenting opinion. In particular, this is the fact that judges use their time to prepare lengthy reasons for dissenting opinions at the expense of hearing other cases; then the publication of those reasons – especially if they have to be translated into all the official languages of the court concerned – is time-consuming and costly.⁵⁰ The discussion above might be read as an indication that the conclusion to this article boils down to a postulate to rationalize the judiciary procedures by removing the right of adjudicators to file and justify their dissenting opinions. Yet, it is quite the reverse that we want to advocate for here. This is because it turns out that the institution of dissenting opinion safeguards values that are critical to a democratic society.

6. The significance of dissent for a democratic society

A democratic society seeks justification for the prestige of justice not in its authoritarian status, not in the nimbus of unanimity (perhaps illusory, after all), not in mysterious rituals or secrecy,⁵¹ but in the quality of jurisprudence based on knowledge and power of argument.⁵² The reasons for a dissenting opinion demonstrate that in the judicial process various solutions were considered, discussed, and ultimately some of these were rejected.⁵³ This is how the discourse of legal practice converges with the essence of a democratic society.

The prospect of a dissenting opinion being filed indirectly enhances the level of jurisprudence, both in the context of the judgment against which it may be filed, and in the context of the future rulings in the same subject area.⁵⁴ The author of the reasons for the majority judgment – in view of the criticism expounded in the reasons for a dissenting opinion, which consistently and inexorably underlines all the inaccuracies and pitfalls in the majority position – pursues noticeably stricter legal requirements to make the reasons more convincing and better motivated. After all, ‘there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation’ (Justice Ruth Bader Ginsburg).⁵⁵ In addition, dissent features constructive criticism of the judgment from a person who has no particular interest in a favourable ruling.⁵⁶ Without being constrained by the requirement to conform to an agreed-upon majority position (the compromise reached), a dissenting opinion can become more explicit, thus more persuasive, than the reasons for the judgment. Consequently, the views expressed in a dissenting opinion may lay the foundation for the judicial decision and for building a line of argument in other judicial decisions, also leading to an abandonment of the line of case law imposed by the judgment with regard to which dissent was filed.⁵⁷ The already mentioned spectrum of influence of dissent needs an even broader take, as in its essence, it constitutes an instrument of dialogue in the legal community. In this context, it is worth pointing out that the argumentation presented in dissenting opinions often provides an impulse for analysis and research in the field literature.⁵⁸ Sometimes, dissent can even become a clue for the legislator as to the possibility of a distinct interpretation of the law, and consequently, for its improvement or even radical change.⁵⁹

One cannot forget that there is yet another level of judicial dialogue inspired by dissent. Since a court judgment must be an act of applying the law – an unbiased drawing of legal consequences from the rules of law applicable to particular facts – the filing of a dissenting opinion may be regarded as evidence that there is an error in reasoning either in making the decision, or in formulating a dissenting opinion. Thus, dissent constitutes a sui generis ‘alert that there may be a defect in the judgment’,⁶⁰ and it encourages a party dissatisfied with it to file an appeal. At the same time, it significantly facilitates appellate and external review of the judgment, if only because a dissenting opinion may be the only source of information about certain defects in the judgment.⁶¹ Adopting the optics and the particular axiology of a democratic society allows one to see the advantages of detecting a flawed ruling and removing it from circulation before it serves as a basis for structuring social relations. Dissenting opinions reveal that a road to the judgment can be a bumpy one, and show that the position taken by the judges is not fully – or even not at all – convincing, even to all the members of the adjudicating panel. Of course, the mere prospect of a dissenting opinion being filed can boost efforts to reach a common position, often keeping the majority from imposing its view; on the other hand, it makes it more difficult to reach agreement and unanimity. If, however, the majority manages to impose their views (more than half of the panel) on the minority (less than half of the panel), dissent becomes the only means of unveiling the ‘relativity’ of the court’s decision: it shows that had the proportions of judges arranged differently, the decision might have been entirely different. For this reason, the institution of dissenting opinion is critical with respect to those judgments that are final and not subject to review. It represents the only procedural moment when alternative resolutions can be presented, when it can be argued that no unambiguous wording of the law in a given area is available, and therefore that the legislator has not conclusively regulated the given issue. This is why in such contexts the judges follow the practice described as ‘judicial activism’: they create the law instead of applying it.

7. Conclusions

The impact of the institution of dissenting opinion has been growing for many years now, gaining recognition and significance in numerous legislative frameworks. Attempts to balance the arguments against disclosing that a judicial decision was not reached unan imously, along with the reasons for objecting to the majority position, against the rationale for justifying a breach of the confidentiality of proceedings, have their outcome in a grow ing number of filed and justified minority report cases. For it appears that a democratic society no longer believes unreservedly in the infallibility of judges and courts, but attaches critical significance to the transparency of their reasoning. Societies demand that courts construct their authority on overt reasoning behind their decisions, on open-mindedness, and on the ability to turn back from a mistakenly taken path. A well-crafted dissent ing opinion challenges the reasons for judgment, and it testifies to the active dialogue between the majority and the outvoted judges. It proves the judge’s independence and their concern for the legal appropriateness of the judgment. It thus becomes an essential component of justice in its broadest sense as a component of legal culture.