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

Joanna Misztal-Konecka

John Paul II Catholic University of Lublin, Poland

English abstract: In most legal systems, the administration of justice in complex and difficult cases is, entrusted to panels composed of multiple judges. In practice, rarely does it happen that this designated group of judges is required to reach a unanimous decision. The subject under scrutiny in the article is the issue of the possibility and significance of disclosing the fact that the judgment was not reached unanimously, along with the rationale that the judge(s) pursued in opposing the majority position. The analysis of this issue requires reaching not only for the legal dogmatic method, but also the legal comparative and axiological methods. The presented research leads to the conclusion that legislators (although not in all countries and not in all international organizations) are increasingly open to allow for the disclosure to the parties and the public of the fact that not all judges voted for a particular decision, along with the reasons for the dissenting position. Despite several objections to the institution of dissenting opinion (votum separatum) connected with undermining the authority of the court and the judgment issued, it turns out that democratic society, which values transparency and the power of substantive arguments, approves of this institution. Dissenting opinion safeguards the judge’s right to express their view, as well as the right of the parties and the public to know the reasons for an alternative solution, including their creative use for the benefit of the judiciary and legal science. Consequently, one can claim that dissenting opinions and the reasons for them constitute a crucial factor in shaping the perceptions of justice.

Keywords: dissenting opinion, democratic society, administration of justice, authority of judicial decisions, justification of the acts of applying the law

Language: English

Published: Number 2(35)/2023, pp. 43-52.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.43

Download: Download Number of downloads: 150

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Filed Under: Articles Tagged With: administration of justice, authority of judicial decisions, democratic society, dissenting opinion, justification of the acts of applying the law

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Keywords

justification of punishment situational assessment Andrzej Malinowski Pedophilia Commission equality psycholinguistics Maciej Dybowski law constitutional consciousness consumer protection legal cases impartiality and independence of judges professional roles of lawyer legal education juridification of the memory interpretation of procedural statements linguistic corpora Radbruch judicial precedent exemplarism Karl Popper Paweł Kokot Gustav Radbruch application of law liberty article 18 of the Constitution Marta Dubowska right to truth Justyna Jezierska memory law freedom of religion rational basis test manner of taking into account the expiration of the limitation period Maurice Hauriou doctors Robert Alexy legal norm theory materialism economic theory of law evolution dissenting opinion Aleksandra Samonek deontological ethics crime social facts Mateusz Zeifert cultural relativism universalism critical philosophy of adjudication analogical reasoning

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