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Judicial dissent in European constitutional courts: A comparative analysis

About this project

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Katalin Capannini-Kelemen

Research subject

The aim of the project is to complete the writing of a book presenting the results of several years of research carried out by the applicant. The book is going to be published in English by Ashgate Publishing (deadline for the submission of the manuscript: January 2017).

The book will offer a first comparative analysis of the practice of dissenting opinions in European constitutional courts, still missing in literature. 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 allowed to know only the final result 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 role of the judge. Today several continental European judges are allowed to express their dissent from their colleagues by writing a separate opinion. The decades-long history of judicial dissent in the practice of these 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.

The book discusses the theoretical background, presents the history of the institution and today’s practice, thus it lays down the basis for an accurate consideration of the phenomenon of judicial dissent in Europe. The introduction of dissenting opinions is a proposal on the table for the Court of Justice of the European Union, and is being discussed in other jurisdictions as well which still deny this possibility to their constitutional judges (such as Italy). The book will offer a valuable tool for this discussion. It also gives a thorough theoretical and comparative background for further research on judicial dissent in Europe, in particular on the practice of Scandinavian courts.

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