Gavin Howe
Expressing dissent towards a law is an important aspect of a representative democracy and our notions of justice. While the law presumes assent to any conveyance made, as it is supposed to be for one's benefit, dissent must be expressed to rebut this presumption. Dissent can be expressed in several ways, including through legal means such as a dissenting opinion in a legal case or through public expressions of dissent such as protests, which can be lawful or unlawful. In liberal democracies, the government operates within the rule of law, representing the will of the people, and freedoms to express political dissent and opinion are constitutionally protected. For example, the Canadian Charter of Rights and Freedoms, Section 2, outlines the freedom to peacefully assemble, associate with others, and express oneself. However, these freedoms are not limitless, and illegal acts of civil disobedience are subject to criminal law.
| Characteristics | Values |
|---|---|
| Dissenting opinion | A dissenting opinion or dissent is an opinion in a legal case in certain legal systems that expresses disagreement with the majority opinion of the court. |
| Binding precedent | A dissenting opinion does not create binding precedent nor does it become a part of case law. |
| Use in subsequent cases | Dissenting opinions can be cited as a form of persuasive authority in subsequent cases when arguing for limiting or overturning the court's holding. |
| Spur for change in the law | In some cases, a previous dissent is used to spur a change in the law, and a later case may result in a majority opinion adopting the understanding of the law formerly advocated in dissent. |
| Reasons for disagreement | The dissent may disagree with the majority due to a different interpretation of existing case law, the application of different principles, or a different interpretation of the facts. |
| Dissent in part | A dissenting opinion which disagrees selectively with one or more parts of the majority holding. |
| Concurring in part and dissenting in part | In some courts, such as the Supreme Court of the US, judges may write an opinion concurring in part and dissenting in part, easily identifying where they join with the majority and where they do not. |
| Special votes | In some courts, such as the Federal Constitutional Court, decisions can be accompanied by a minority opinion with the signature of the differing judge votes, allowing for greater transparency and strengthening the position of individual judges. |
| Publication of minority opinions | In some legal systems, such as Italy and the Netherlands, minority opinions may not be published in judgments or are not permitted at all. |
Explore related products
What You'll Learn
Dissenting opinions in legal cases
A dissenting opinion, or dissent, is an opinion in a legal case in certain legal systems written by one or more judges, expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are not binding law and future cases are not obliged to follow them. However, they can be cited as a form of persuasive authority in subsequent cases when arguing that the court's holding should be limited or overturned. In some cases, a previous dissent is used to spur a change in the law, and a later case may result in a majority opinion adopting a particular understanding of the law formerly advocated in dissent.
The dissent may disagree with the majority for any number of reasons: a different interpretation of the existing case law, the application of different principles, or a different interpretation of the facts. Many legal systems do not provide for a dissenting opinion and provide the decision without any information regarding the discussion between judges or its outcome. A dissent in part is a dissenting opinion that disagrees selectively with one or more parts of the majority holding. In decisions that require holdings with multiple parts due to multiple legal claims or consolidated cases, judges may write an opinion "concurring in part and dissenting in part".
In some courts, such as the Supreme Court of the United States, the majority opinion may be broken down into numbered or lettered parts, which allows those judges "dissenting in part" to easily identify the parts in which they join with the majority, and the parts in which they do not. The dissenting opinions of judges of the Constitutional Court have been published ever since its creation in 1993 and some have had a significant effect on the subsequent case law and legal theory. However, dissenting opinions are not always published in all courts. For example, a minority opinion may not be published in judgments of Italian courts.
In the proceedings before the Federal Constitutional Court (BVerfG), the fourth amendment to the Federal Constitutional Court Act of 21 December 1970 introduced the possibility of a special vote. Since then, the decisions of the BVerfG can be accompanied by a minority opinion with the signature of the differing judge votes. The aim of the reform was to achieve greater transparency in court decisions and to strengthen the position of the individual judge. Special votes are also possible at some state constitutional courts in Germany.
Practicing Law in California: Out-of-State Attorney's Guide
You may want to see also
Explore related products
Expressing dissent through protest
Protest and dissent are two sides of the same coin. Protest can be thought of as a public demonstration of dissent. Dissent, in legal terms, means to express a minority view or a difference of opinion. It is often related to the concept of critical thinking, which involves questioning accepted notions of authority, truth, and meaning.
The right to dissent and protest is protected under international human rights law. However, in many countries, the space and opportunity to express dissent through protest are shrinking due to various measures such as the surveillance of activists, the labelling of activists as 'terrorists', and increasing physical and legal restrictions. In some instances, protests against violations of human rights or environmental destruction are even being met with violence and extrajudicial killings.
Despite these challenges, dissent through protest has been a critical force for positive change in many areas, including gender equity, racial justice, environmental protection, and access to healthcare. For example, the civil rights movement in the USA and the anti-apartheid struggle in South Africa were both driven by dissent.
When expressing dissent through protest, it is important to be aware of the potential risks and consequences. In some cases, individuals and social movements who challenge abusive power structures may face intimidation, reprisals, and violence. Therefore, it is crucial to strive for stronger solidarity and support for those who dare to express dissent through protest.
Martial Law: Can Private Businesses Be Blocked?
You may want to see also
Explore related products
The role of civil disobedience
Civil disobedience is a widely recognised form of conscientious and political action. It is a public, non-violent, and conscientious breach of law, undertaken with the aim of bringing about a change in laws or government policies. The concept of civil disobedience is deeply rooted in Western thought, with philosophers such as Cicero, Thomas Aquinas, John Locke, Thomas Jefferson, and Henry David Thoreau seeking to justify conduct by virtue of its harm.
The term "civil disobedience" was coined by Thoreau in his 1849 essay "Resistance to Civil Government", later republished as "Civil Disobedience". Thoreau himself practised civil disobedience by refusing to pay his state poll tax as a protest against slavery, the extermination of Native Americans, and the war against Mexico. He was jailed for his refusal to pay taxes, willingly accepting the legal consequences of his actions. This willingness to submit to punishment and set a moral example is a key aspect of civil disobedience.
Mahatma Gandhi is also closely associated with the philosophy of civil disobedience, developing the concept of satyagraha, which emphasises nonviolent resistance to evil. Gandhi's satyagraha was influenced by the nonviolence in Percy Shelley's poem "The Mask of Anarchy". Gandhi employed civil disobedience in South Africa in 1906 and later in India during the 1920s and 1930s, playing a crucial role in the Indian independence movement and campaigns for equal rights and freedom.
Other notable examples of civil disobedience include the Boston Tea Party, suffragists illegally casting their ballots, and sit-ins at whites-only lunch counters. These acts of civil disobedience have played a significant role in bending the arc of the moral universe toward justice, bringing about meaningful political, social, or economic change.
While civil disobedience is a powerful tool for social change, it is not without its criticisms and limitations. Some view it as a threat to the existing political structure, potentially leading to anarchy and the breakdown of law and order. Additionally, the effectiveness of civil disobedience depends on the opposition's adherence to a certain morality that can be appealed to.
Studying Law in Canada: Options for Indian Students
You may want to see also
Explore related products
Dissent in liberal democracies
Liberal democracy, also known as Western-style democracy, is a form of government that combines the organisation of a democracy with liberal political philosophy. Common elements within a liberal democracy include elections between multiple distinct political parties, a separation of powers into different branches of government, the rule of law, a market economy with private property, universal suffrage, and the equal protection of human rights, civil rights, civil liberties, and political freedoms for all citizens.
Dissent, or the expression of opinions different from the majority or the government, is vital in a democracy. Democracies generally tolerate dissent, recognising it as essential for healthy debate and accountability. Dissent allows for a diversity of viewpoints, fostering an environment where governance can be questioned and improved. It acts as a check on power, holding leaders accountable for their actions. Many social movements, from civil rights to environmental activism, began as dissent against the status quo.
However, the relationship between democracy and dissent is nuanced and sometimes fraught with tension. While democracies generally tolerate dissent, there are times when governments may suppress it, especially if it is perceived as a threat to stability or security. This delicate balance is often contentious and can lead to debates about the limits of free expression and the role of the state in maintaining order. During times of internal unrest, governments may argue that suppressing dissent is necessary to maintain order, which can include measures like curfews, internet shutdowns, and arrests of protest leaders. While these actions may be justified in the name of security, they can also undermine democratic principles and lead to accusations of authoritarianism.
Dissent has played a crucial role in achieving justice and social change throughout history, such as in the end of apartheid in South Africa and India's independence from colonial rule. In modern India, dissent continues to shape the political landscape, with contemporary social movements challenging governmental authority.
Distracted Driving: Can Laws Change Dangerous Habits?
You may want to see also
Explore related products
The law's definition of dissent
Dissenting opinions, or dissent, are an integral part of the legal process in many countries. They are written opinions by judges that disagree with the majority opinion of the court, expressing a different viewpoint on the interpretation of existing case law, application of principles, or interpretation of facts.
In some legal systems, dissenting opinions are allowed and are written, delivered, and published simultaneously with the majority opinion. These dissenting opinions do not create binding precedents or become part of case law. However, they can be cited as persuasive authority in future cases to argue for limiting or overturning the court's holding. Dissenting opinions can also spur changes in the law, as they may be adopted in later cases, influencing the understanding and interpretation of the law.
The right to express dissent varies across different countries and legal systems. For example, in Europe, the European Convention on Human Rights allows judges of the European Court of Human Rights to attach dissenting opinions to judgments. On the other hand, the Dutch legal system does not permit dissenting opinions, although published decisions may reflect the divergent opinions of judges.
In the United States, the Supreme Court may provide numbered or lettered parts in its majority opinion, allowing dissenting judges to easily identify the parts they agree or disagree with. This practice enhances transparency and strengthens the position of individual judges.
While dissenting opinions are an essential aspect of the legal process, some, like Chief Justice of Australia Susan Kiefel, argue that they should be reserved for the most significant cases. She expresses concern that frequent judicial dissents may distract law students and legal commentators from more critical matters and that humorous dissents could potentially harm the public image of the court and its judges.
Supreme Court's Power: Striking Down Laws
You may want to see also
Frequently asked questions
A dissent is a disagreement with something that has been done. In law, it is a disagreement with a majority opinion or judgment.
The legal right to engage in dissent is often outlined in laws that guarantee freedom of thought, belief, opinion, and expression. For example, in Canada, this is outlined in the Canadian Charter of Rights of Freedoms, section 2.
Legal forms of protest (dissent) are permitted, while illegal acts (civil disobedience) are subject to criminal law.
Yes, dissenting opinions can be cited as a form of persuasive authority in subsequent cases when arguing for a change in the law.
Most countries have laws that protect the freedom to express dissent. However, some countries, like Italy and the Netherlands, do not permit dissenting opinions in certain courts.
