Dissenting Opinions in Constitutional Courts

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. The thesis that this Article will develop and uphold is that the practice of dissenting opinions has its own distinct dimension in constitutional courts, and consequently the findings of American (and more in general, common law) studies might be used within certain limits. This essay will point out the peculiarities of constitutional courts that researchers have to take into consideration when analyzing the practice of judicial dissent in continental Europe. These peculiarities should induce scholars to carry out research on dissenting opinions within constitutional courts.

Keywords: Dissenting opinions, Constitutional courts, Judicial decision-making, Comparative law, Comparative constitutional law

JEL Classification: K19, K39