Archiwum
Filozofii Prawa
i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR
  • About us
  • Aim & scope
  • News
  • Issues
    • Current Issue
    • Past Issues
  • Editorial board
    • Board Members
    • Reviewers
  • For authors
  • Ethics
  • Contact
  • Polski

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: 131

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

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.

Download file: Download
Number of downloads:
232

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

Szukaj

Categories

  • Articles
  • Bez kategorii
  • Editorial
  • In Memoriam
  • News
  • Reports
  • Reviews and discussions

Keywords

Ludwig Wittgenstein collaborative practice emergency laws legal certainty the bar intertemporal problems of law freedom of speech apoliticality therapy public protection of truth Sławomir Drelich philosophy of criminal law weighing the rightness interpretation of the Bible situationalist concept of general clauses parliament Unfinished Dialogue constitutional awareness self-realization Mateusz Wojtanowski strategic speech self-agency health sources of law normative theories of legal interpretation freedom of religion Neil MacCormick test of a reasonable sceptic sociology of film Thomas Bayes minimal morality Herbert Hart constituent power to exist intentionally social order hard cases principles of criminal law respect for law pandemic underrepresentation Spanish law professional role Toulmin’s model monkey trial rational application of law nostalgia neopragmatism European Union law independence of advocates’ activity crisis

Copyright © 2025 Polska Sekcja Międzynarodowego Stowarzyszenia Filozofii Prawa i Filozofii Społecznej IVR | Administrator strony: Karolina Gmerek

Ta strona używa plików cookies. Zakładamy, że wyrażają Państwo na to zgodę, ale mogą Państwo także wyłączyć pliki cookies w Ustawieniach. //
This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. (Zob. więcej // Read more) Ustawienia // SettingsZGODA // ACCEPT

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Non-necessary
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
SAVE & ACCEPT