Uno studio sulla “dissenting opinion” con particolare riguardo all’esperienza del diritto inglese

A study on dissenting opinions in the English common law

Abstract

Abstract: A study on dissenting opinions in the English common law – The essay explores the many means through which judicial dissent has traditionally made its way into the English legal system in order to be finally accepted as an ineliminable instrument that the minority has availed itself of to air its differing opinion, mostly in matters of general, public importance. So, the research is in the first place directed towards the identification of the different types of dissent and of the forms (even concurring) in which it may be shaped. Furthermore, the study involves the attempt to find out what reasons may underlie the expression of dissent and whether they may conceal some kind of idyiosincratic state of mind on the part of the dissenters. A view is also taken of a number of famous, even for their strong tones, dissenting opinions in the courts of last instance. The general, and reassuring, impression is that such dissents not only reflect issues and values which reasonably may split the public opinion as well as the courts. They are also expressed with the clear perspective of contributing, although adopting a different point of view, to a better development of the domestic legal system. And not infrequently dissents have over an adequate span of time converted themselves into majority views once their intrinsic force has come to be accepted. Which brings us to conclude that dissent in itself does not constitute a menace to the coherence and credibility of a legal system, is well embedded in the English legal tradition and is not likely to be abandoned in the foreseeable future. Conversely, it gives rise to a positive example that could be fruitfully followed, without any fear, by continental systems, such as the Italian, so sweeping away the unjustified diffidence and suspicion that dissent might shake its stability.

Keywords: Dissenting opinion – Definition – Classifications – Admissibility – Assenting, dissenting and concurring opinion – Risks and benefits – Famous dissenting opinions in the House of Lords and in the UK Supreme Court – Dissenting opinion and progress of the common law