A Performative Theory of Judicial Dissent

Abstract

This article introduces a ritual theory of judicial dissent. Conventional accounts of the functions of judicial dissent, whether in the context of domestic or international judicial systems, can be grouped into three thematic categories: ‘dissent as transparency’, ‘dissent as opposition’ and ‘dissent as conscience’. Leaving aside the disagreement over whether judicial dissent should be institutionalised at all, these accounts of the institutional functions of dissent are generally accepted with little dispute. Yet, while these conventional accounts may be normatively unproblematic, they fail to fully or coherently capture the mechanics by which judicial dissent operates upon institutional authority in practice. Irrespective of judicial dissent's capacity to function, or be seen to function, in the ways envisaged by doctrine, this article considers how a ritual theory analysis of dissent – with its focus on form – may supplement conventional accounts of judicial dissent.