MONDAY ESSAY: The Value Of Dissent & How Legal Disagreements Shape The Law

Introduction

Dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.

Dissent is a vital component of any legal system, serving as a catalyst for growth, accountability and justice. In Ghana’s legal framework, dissenting views and opinions play a crucial role in shaping the law, promoting transparency and safeguarding individual rights. Judicial disagreements, though often viewed as divisive, are also essential in highlighting alternative perspectives and interpretations of the law. By challenging the popular or majority view, dissenting judges, lawyers or legal commentators bring attention to potential flaws, biases or oversights thereby enriching the legal discourse. Dissent is more than mere disagreement but a powerful expression of individual thought within the legal realm. Dissent is not limited to courts, it occurs in everyday conversations and manifests across various platforms. While dissent can be seen as conflict, it equally fosters healthy debate, challenging established ideas for better outcomes. Dissenting opinions in particular sow the seeds for subsequent majorities providing a wholesome element for the growth of the law. The value of dissent seems to have been well summed up in the words of Nana Dr. S.K.B. Asante where he stated that “although Danquah’s submissions did not prevail in the Re Akoto case, they subsequently became the cornerstone of the juristic edifice which was erected after his death for the protection of human rights. All Constitutions promulgated after 1966 have faithfully incorporated Danquah’s arguments in the Re Akoto Case.” This essay discusses the value of dissent, how it influences the legal system and what it reflects about society.

Dissent from a historical perspective

In as much as dissenting views, especially judicial opinions remain a modern practice, the English legal tradition has cultivated the culture of dissent beginning with the delivery of decisions by judges in the Court of the King’s Bench. These courts were manned by several judges who were required to deliver their decisions seriatim, that is, in series. This practice meant that judges usually took turns delivering their opinions orally such that they usually required the counting of votes “in favour of” and those “against” a particular issue of legal importance. It was usually the vote count that helped determine which line of reasoning prevailed and became the ratio decidendi or the binding precedent. This practice meant that unanimity in judicial decisions was not a common practice or feature in the early legal tradition. This tradition went ahead to influence other legal systems including the American legal system. Overtime, courts began to move away from the practice of delivering decisions in seriatim to the practice where judges met privately to deliberate on the case before proceeding to deliver a unified opinion of the court in the form of a unanimous decision. In America, under Chief Justice Marshall, the hybrid system was adopted in the form of an authored majority opinion for the Court with other Justices having the option of writing separately, either in concurrence or in dissent. Fast forward to modern courts and the Ghanaian situation, there has been the proliferation of dissenting views and opinions as a result of the adoption of the hybrid system. This has produced notable dissenting opinions such as that of Siriboe and Anin JJ. A in the Sallah v Attorney-General (1970) 2 G & G 493; or that of Date-Bah JSC in Republic v High Court (Fast Track Division) Accra; Ex parte Commission on Human Rights and Administrative Justice (Richard Anane Interested Party) [2007-2008] SCGLR 213-369; or that of Amadu, Amegatcher, Prof. Kotey JJ. SC in the case of Ezuame Mannan v The Attorney-General and Speaker of Parliament, Writ No. J1/11/2021; or that of Lovelace Johnson and Amadu Tanko JJ. SC in the case of Alexander Afenyo Markin v Speaker of Parliament and the Attorney-General, Writ No. J1/01/2025; just to name a few. 

The value of Dissent

History tells us that there is a general belief that dissent and separate opinions somewhat weaken the authority of the courts or the legal system by undermining the unity of the interpretation of the law. This, many say, detracts from the authority of the court in that dissenting judges can be likened to persons who “air the court’s dirty laundry before the public” and by so doing undermine public confidence in the wisdom and universality of the judicial process. These criticisms may or may not be true. All the same, they are far outweighed by the arguments for dissent. Dissent appeals to future generations because the hope is that “today’s dissent will become tomorrow’s majority opinion.” Though dissent is mostly relegated to the back-bench of judicial or legal history, there are many examples of dissenting opinions which subsequently were adopted and became the current law. For example, the sole dissenting opinion delivered by Justice Harlan in the US case of Plessy v Ferguson 163 U.S. 537, 552 (1896) in favour of the fact that “the law regards man as man, and takes no account of his surrounding or of his color when his civil rights as guaranteed by the supreme law of the land are involved” was 60 years after , upheld in the unanimous opinion of the court in the case of Brown v Board of Education 347 US 483 (1954). Furthermore, dissent represents the counter principle of the stated legal proposition such that it serves as a vitalizing influence on the law by adding another dimension to the court’s analysis. Thus, though it may never become the law, it “spotlights the reasoning utilized by the court by articulating the logically opposite legal principle.” Above all, dissent contributes to democratizing the judiciary and by so doing makes it more transparent to the public and thus strengthening its legitimacy and credibility. In a healthy judicial or legal setting, decisions should be the product of rigorous, thoughtful and open deliberations as opposed to secret deliberations or the “façade of unanimity.”

Conclusion

Although dissent plays an integral role in contemporary jurisprudence, it is the author’s humble view that it should be exercised only in the case of a fundamental disagreement over the principles underlying the outcome of a particular case. Judges or legal enthusiasts should not dissent merely because they would have composed a different opinion.  Any disagreement which is not central to the disposition of the case, a judge should exercise restraint. The institution of dissent should be exercised with the same care as any other component of judicial power. All in all, when exercised appropriately, dissent (though seemingly capable of disrupting the unity of the judiciary) may cause little or no harm considering the fact that judges or lawyers are accomplished people who understand the value of disagreement and how it shapes the law and society.

God bless!