Dissenting Opinions in Constitutional Courts

Author:

Kelemen Katalin

Abstract

Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference118 articles.

1. Id. § 31. In a similar way, unanimity is also required from the chambers of the German Federal Constitutional Court if they refuse to decide an application by an ordinary judge and when they decide on the admissibility of constitutional complaints. Bundesverfassungsgerichts-Gesetz [BVerfGG] [Federal Constitutional Court Act], Mar. 12, 1951, Reichsgesetzblatt [RGBl.] 1823, as amended, §§ 81a, 93d (Ger.).

2. This was the case for example in relation to the Bush v. Gore (2000) judgment already mentioned above. See supra note 85 and accompanying text.

3. Law no. X-1806 (Nov. 11, 2008), Valstybės žinios (Official Gazette) No. 134–5179 (Nov. 22, 2008). The provision allowing the publication of dissent is now contained in Article 55 of the Constitutional Court Act. The Act's English translation is available on the official website of the Lithuanian Constitutional Court: http://www.lrkt.lt/Documents3_e.html (last visited June, 17 2013). Consequently, the Constitutional Court modified its Rules of Procedure inserting a Section VII entitled “Dissenting opinion of a Justice of the Constitutional Court” in Chapter VIII concerning the consideration of a case at a judicial hearing (Decision of Nov. 26, 2008). For the English translation of the Rules of the Constitutional Court see its official website: http://www.lrkt.lt/Documents4_e.html (last visited June 17, 2013).

4. In practice, however, the latter competence is used in the majority of the cases. See the official statistics available on the website of the Court: http://www.ccr.ro/uploads/activ02_13_1.pdf (last visited June 17, 2013). From the moment of its establishment until the end of February 2013 the Romanian Constitutional Court dealt with 30,114 cases and only 0.008% of them concerned a priori review (240 cases), while 97.6% emerged from a concrete controversy (own calculations).

5. In the period 1990–2007, there were one or more separate opinions in 62% of the cases in the U.S. Supreme Court. See Epstein et al., supra note 5, at 106. On the German Federal Constitutional Court the dissent rate hardly reaches 6%. In the period 1971–2002, only 115 decisions out of 1,781 revealed disagreement between judges. See Vanberg, supra note 20, at 91. In the Spanish Constitutional Court the dissent rate is somewhat higher (in the period 1981–2008: 12,7%), but still does reach the American level. Rörig & Guerrero Picó, supra note 20, at 15.

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