Preface

Document Cited authorities (6) Cited in Related
AuthorNeal Geach/Christopher Monaghan
Pages15-18
Preface

Ultimately, at first glance, this may not seem an original subject for a book. Indeed, there have been some excellent books and journal articles on the subject looking at the psychology of dissenting judgments or their role as an aspect of freedom of expression.1 Where this book attempts to differ is by not focusing on the theoretical underpinnings of dissent. Instead, the idea is to look at the issue of dissent in terms of the development of the law. The cases chosen by the contributors show the court facing a legal crossroads, as their Lordships are tasked with choosing the correct path to take in terms of the development of the law. The approach of each contributor has been to explore a key case, one where the dissenting judge offered a different and, it is submitted, a preferred approach to that of the majority. Some of the dissenting judgments covered in this book have influenced later changes in the law; most notably Lord Denning’s dissent in Scruttons Ltd v Midland Silicones Ltd, and Baroness Hale’s and Lord Bingham’s dissent in YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs Intervening). Others have yet to be used to challenge the law, as developed by the majority, in the particular case. Each contributor has approached his or her case from the point of view of the dissenting judge and has focused on the view advanced by the judge and the merits that it had, highlighting the impact the judge’s opinion would have had if it had been more persuasive at the time.

Both of the following quotes sum up why dissenting opinions are important and why, by extension, this book has been written:

… it is only by trial and error, by insistent scrutiny and by readiness to re-examine presently accredited conclusions that we have risen, so far as in fact we have risen, from our brutish ancestors, and in our loyalty to these habits lies our only chance, not merely of progress, but even survival.

…

1 One particularly interesting piece, albeit focusing on dissent amongst the American judiciary, is by Epstein, L, Landes, WM and Posner, RA, ‘Why (and When) Judges Dissent: A theoretical and empirical analysis’, part of the Chicago Working Paper Series Index, Chicago Law School, January 2010, available at: www.law.uchicago.edu/Lawecon/index.html (accessed 12 August 2011).

xvi Preface

All discussion, all debate, all dissidence tends to question, and in consequence to upset, existing convictions: that is precisely its purpose and its justification.

Learned Hand2

In a democracy dissent is an act of faith. Like medicine, the test of its value is not in its taste but in its effect.

JW Fulbright3

A fundamental part of any democracy is freedom of expression. An expression of...

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