Katalin Kelemen – Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective, Routledge (Hardback 2018, Paperback 2019)

We are all curious about what happens behind the curtains in a courtroom. When more judges sit on a panel, they have to discuss the case in order to reach a decision. They never do it before the eyes of the public and we are only allowed to know the final outcome of this discussion: the judgment. Moreover, in continental Europe we expect from our judges that they find the one true answer to the legal problem before them, so judicial panels should show unity when deciding a case. However, a recent trend, emerged in the last half century, is challenging this understanding of the judicial role. Today many continental European judges, mostly the ones sitting on constitutional courts, can express their dissent from their colleagues by writing a separate opinion. The decades-long history of judicial dissent in the practice of European constitutional courts calls for an analysis. Separate opinions offer an insight into the process of judicial decision-making – a process otherwise hidden from the public – making courts more transparent. They allow us to look behind the curtains and rethink what we know about how our judges take their decisions.

While in the common law tradition an ample body of literature exists on the practice of separate opinions, the topic is still largely unexplored in continental European countries. The main premise of Judicial Dissent in European Constitutional Courts is that the practice of dissenting opinions has its own distinct dimension in continental Europe, and consequently the findings of studies focusing on a common law context may be only used to a limited extent. This book does not offer to develop new theories about or approaches to judicial dissent. It aims to observe, compare and systematise the practice of dissenting opinions in European constitutional courts within the existing theoretical framework. It discusses judicial dissent from the perspective of the civil law tradition. Questions specific to this tradition, such as the nature of constitutional courts and the principle of legal certainty, are given special weight in the discussion. The idea behind this work is that an understanding of the practice of separate opinions helps clarify the essential nature of judging within the civil law tradition.

The topic calls for an empirical research due to the secrecy of deliberations prevalent in courts and the confidentiality of the records from which we could learn more about the decision-making process. In addition to a thorough analysis of the decisions including separate opinions, an important source of information is represented by the judges themselves. The author conducted interviews with European constitutional judges and presents her findings in this book. The book also offers some statistical data on certain constitutional courts and a quite detailed presentation and discussion of data concerning the Hungarian Constitutional Court, but since the data on the other constitutional courts are very limited and sporadic, they are not compared systematically. The author tells the story of dissenting opinions in European constitutional courts and reflects on this story from a comparative and specifically legal perspective. Thus, her approach is heavily historical, often operating with examples.

Chapter I of the book defines judicial dissent and explains why it matters. This Chapter also explains the difficulties of conducting an empirical research on judicial dissent, and develops the thesis according to which the practice of dissenting opinions has its own distinct dimension in constitutional courts. Continuing this approach, Chapter II analyzes the decision-making process of European constitutional courts. In presenting and comparing the constitutional courts’ institutional design, the author focuses on three aspects that are especially relevant for a study of judicial dissent: the internal court structure, the prominent figures of the decision-making process (the court’s president, the rapporteur judge, and the opinion-writer), and the role of non-judicial offices (the judges’ law clerks and the secretary general of the court). In doing so, she illustrates her findings with comparative tables. Finally, the author briefly discusses the final outcome of the decision-making process, the judgment, both from a formal and from a substantive perspective, in particular comparing the French and the German style with the common law style.

Since the civil law tradition is the focus of this work, the common law tradition serves only as a basis for comparison and the choice among common law jurisdictions is quite straightforward: England is the motherland of the common law and of its judicial style, while the United States represents a common point of reference for comparative studies today. Chapter III presents the practice of dissenting opinions in these two common law systems. Chapter IV then focuses on judicial dissent in the civil law tradition. This central chapter first examines dissenting opinions from a historical perspective (Section 1), then it discusses judicial dissent in Germany, Spain and Italy from Western Europe (Section 2) and in the two European courts (Section 3). Finally, it gives an overview of the phenomenon in East-Central Europe (Section 4), and analyses in detail the practice of the Hungarian Constitutional Court in the first two decades of its activity (Section 5).

In the last and fifth chapter the Author reflects on some crucial theoretical questions regarding the institution of dissenting opinion in the light of the findings of her comparative research. The first section introduces the reader to the arguments used in favour and against the publication of dissent. Section 2 examines more in detail the two of the principles that more often emerge in these discussions and the difficult balance between them: judicial independence and the transparency of decision-making. The question of democratic legitimacy is also crucial for an accurate analysis of the phenomenon of judicial dissent. Dissenting opinions have always been seen and studied in the light of their impact on the legitimacy of the judiciary, whether constitutional or ordinary. However, much depends on our understanding of the concept of legitimacy. The concepts of judicial independence and transparency are also examined in the light of legitimacy. Section 3 focuses on the principle of legal certainty and its relationship with judicial dissent. The analysis carried out in Sections 2 and 3 considers the external dimension of judicial dissent: the court’s relationship with the other public powers, with the public in general and with the legal system as a whole. Section 4 then aims to look at the issue of separate opinions from the judges’ point of view, so it takes under scrutiny the internal dimension of judicial dissent. When do judges decide to publish their dissent? How do they make use of this possibility? How does it affect their relationship with their colleagues? Finally, Section 5 discusses the role of separate opinions in the development of constitutional case-law. It presents cases of dissents that became the opinion of the majority in a later case and concurring opinions expounding a principle or a theory for the first time in the case-law of a constitutional court.

The book’s findings and conclusions are limited to constitutional courts. A separate examination of ordinary courts and their decision-making process could bring to different conclusions and would certainly greatly contribute to a better understanding of the judicial function in the civil law tradition. The Author argues that the extent to which a legal system’s judges adhere to a more traditional view of the judicial role can be measured through the practice of writing separately. But even in jurisdictions that ban dissenting opinions completely, one can look at the deliberative culture within the court. For example, the fact that Italian constitutional judges usually do not refrain from writing the judgment in cases in which they remained in the minority shows a very high respect for the principle of collegiality and a high level of institutional loyalty. In other courts, judges feel less comfortable with authoring a decision they do not share.

Also, as regards the judicial decision-making process in general, and the practice of dissenting opinions in particular, rather than a distinction between the civil law and the common law tradition, we can notice a difference between the United States and the rest of the Western legal tradition, including other common law countries. A very high dissent rate, the phenomenon of ‘canonization’ of dissents, and the frequent use of non-legal (social, political, moral) arguments are unique to the US practice. In Europe, on the other hand, there is a clear trend to allow judges, especially constitutional judges, to write separately. While several Western European constitutional courts have not caught up with this trend yet, in East-Central Europe even those countries that were skeptical about the dissenting opinions, namely Lithuania and Romania, later decided to open towards it. But there has been a lively debate about the possibility of removing the ban on dissenting opinions also in France and Italy, as well as in relation to the CJEU. The European practice is, however, still far from being homogeneous. Each constitutional court must be examined in its specific legal and political context.

In essence, the European trend towards the disclosure of judicial dissent is to be examined and discussed as part of a larger picture in which transparency and accountability are at the centre. This trend is accompanied by an intensified dialogue between courts, involving national supreme courts, constitutional courts and international courts. Indeed, dissenting opinions and a more extensive use of comparative law by constitutional judges are two sides of the same coin. In a context of constitutional pluralism, dissenting opinions are the proof that courts are not immune to the debates taking place in society but, on the contrary, they engage in them. Constitutional pluralism is especially strong in Europe today. Such pluralism compels judges to deal with a plurality of sources of constitutional authority. In this way, courts, and in particular constitutional courts, become part of a larger public discourse in which they participate actively not only through their judgments but also through the individual opinions of particular judges.

Posted by Associate Professor Katalin Capannini-Kelemen (Örebro University, Sweden)