13 - The precedential impact of individual opinions

Summary

Introductory remarks

The fact that a decision was a majority one does not render it any less a decision of the Court than a unanimous one. On the other hand, even if the judgment is unanimous, it is not infallible; this possibility can scarcely be less open where the decision was a majority one. Judges who think it is erroneous in whole or in part have a statutory right to say so; so too where the decision is sought to be supported by different or additional reasons. But do dissenting and separate opinions (both referred to below as ‘individual opinions’) weaken the authority of the Court's judgment?

There is, indeed, an appearance of disarray in the presentation of several opinions on the same point. The argument against multiplicity not surprisingly goes back a long way. It has been frequently made and as frequently resisted. Experience has not confirmed the fears expressed by Lord Phillimore in 1920, when, speaking of the work of the Advisory Committee of Jurists, he said, ‘[W]e came to the conclusion that a dissenting judge might insist on expanding his motifs in such a way as to make the judgment ridiculous … Curiously enough, the Council [of the League of Nations] is about to propose to the Assembly that the dissentients shall be allowed to express their reasons.’