Vol. 33 No. 06 (August 2023) pp. 83-88THE INTRICACIES OF DICTA AND DISSENT, by Neil Duxbury. Cambridge: Cambridge University Press, 2021. pp. 260. Cloth $115.00. ISBN 9781108841498. Paper: $39.99. ISBN 9781108794886.
Reviewed by Chris Monaghan., School of Law, University of Worcester, UK. Email: c.monaghan@worc.ac.uk.
Neil Duxbury in The Intricacies of Dicta and Dissent offers a thought-provoking account of the subject matter through the form of two extensive essays. In his first essay on Dicta, Duxbury observes that “[l]awyers and judges do not always agree – indeed are not always sure – what is and what is not obiter in a judgment” (p. 5). He is clear that within the common law, the distinction between ratio decidendi (the binding reasons for the decision) and obiter dicta (which is not binding) is that it “serves as a brake against judges formulating common-law rules ultra vires” (p. 8). In the second part of his essay on Dicta, Duxbury considers the importance of stare decisis in the emergence of obiter dicta, but is clear that these concepts did not emerge in “tandem” (p. 15). He views the emergence of obiter dicta as “[emerging] not with the acceptance that decisions by courts should bind as precedents. It emerges, rather, once making decisions becomes a recognizable function of the judiciary” (p. 18). In part three, “‘Obiter’ As Legal Entity”, Duxbury points to sixteenth-century lawyers being instructed that when relying on an earlier case as a precedent, that they had to distinguish between “points of law” and “bye-matters” (p. 19). It was becoming clear in the sixteenth and seventeenth centuries that obiter dicta was not considered to be part of the law, although it could have some use in the absence of ratio (pp. 19-21). Nonetheless, Duxbury is clear that some judges still believed obiter had some value, and whilst from the eighteenth century onwards, “[a] simple message is repeated from one legal generation to the next: obiter opinions are not binding on a court. But this is hardly the whole picture” (p. 24). Indeed obiter is both “slippery” and “misleading as a concept” and by the end of the twentieth century, English judges “are now and again to be found according to particular dicta a more elevated status” than earlier judges (pp. 25-26).
Duxbury’s consideration of “Dicta depicted” is interesting and he makes sound observations, such as how a judge might, depending on the context, refer to obiter as a secondary source, and then subsequently disregard it as being unimportant (pp. 27-28). So is obiter just a by the way comment? Duxbury notes that “ [a]lthough the standard description of obiter dicta is that they are comments made in passing, English judges and lawyers, while accepting this description, depict them in other ways besides” (p. 28). Duxbury’s description of how, depending on the circumstances, dicta is depicted by lawyers and judges is useful to the reader, as it does much to demonstrate the ambiguity around dicta. This discussion is continued in part five of the essay. It is interesting to read Duxbury’s assessment that judges, whilst being the ones to produce and interpret dicta, have often been prompted to do so by the lawyers involved in the proceedings. Duxbury notes the modern reluctance of judges to be drawn into making obiter dicta (pp. 33-34). The contextual value of dicta is emphasized by Duxbury, as this can be relevant in “the scene setting” and explaining the decision, or to pass comment on the conduct of the parties (pp. 35-36). Duxbury is skeptical that dicta can be praised as showing how the law might develop in the future, as dicta [covering particular circumstances or conduct] “even where they do exist, will not necessarily hold sway in future courts (p. 42). Duxbury’s analysis of the benefits and disbenefits of dicta is balanced. The next part of the essay on “Engines of Confusion” continues the discussion and looks at whilst dicta might be relied upon by a later court, it can never be as an authority. Duxbury notes the judicial frustration in the twentieth century of counsel relying on obiter in preference to the available ratio (p. 51). More worryingly for sitting judges, was the concern that they might regret earlier dicta and feel constrained by their previous comments.
Duxbury observes that regarding obiter, “[j]udicial self-censorship is a decidedly limited strategy”, given that the common law judges would have difficulty in refraining from engaging in obiter (p. 60). He also observed that if one was to engage in treating anything unnecessary to the outcome as obiter, then this gives rise to a “judicial lament” of not doing justice to “certain observations”, or having to treat an entire dissent as obiter (p. 63). Duxbury proceeds to consider the weight put on dicta and whether particular types of dicta can be distinguished. He notes that modern judges are inclined “to posit that when dicta are on point and not contradicted by precedent, and when they represent convergent judicial opinion, they should be presumed weighty, and possibly treated as dispositive” (p. 85). The esteem that a judge is held to by their peers and successors, is also important as to how their dicta will be treated in the future and the relative weight attached to it. As Duxbury makes reference to a remark by Lord Hoffmann in R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, where His Lordship stated that “there are obiter dicta and obiter dicta” and that Lord Denning’s obiter dicta was to be held in high regard (p. 346).
The remainder of this review will focus on Duxbury’s second essay, which explores Dissent. Judicial dissent is a particular area of interest to many common law lawyers and academics, and is sometimes featured in extra-judicial and post-retirement writing (as drawn upon by Duxbury in his essay). Duxbury observes that a dissent “is technically speaking, an obiter dictum [thus]… it can be removed from the narrative of a case without the decision in the case being affected” (p. 127). As Lord Nicholls of Birkenhead, a retired Lord of Appeal in Ordinary, observed “[t]hey have no legal effect in the cases in which they are given (p. 127). Duxbury is of the view that although it is obiter dicta, a dissent should be treated differently, as the literature is far more concerned with judicial dissent than judicial dicta more broadly. Indeed, it is true that the appeal of judicial dissent fascinates many academics.
Duxbury dismisses the argument that it is impossible to unintentionally dissent and indeed notes that English appellate judges will “quite often set forth opinions underpinned by dissentient sentiments without going so far as to dissent” (p. 131). He is clear that when judges dissent, it does not necessarily mean that they do so for the same reasons as a fellow judge, who also happens to dissent. Therefore, this explains the use of individual dissents rather than the use of joint dissenting opinions (p. 131). There is an interesting discussion on how dissents are viewed, with Duxbury noting that even dissenters (more generally in society, and including judges) will often acknowledge “that agreement on an outcome is the ideal, and that their having felt moved to dissent, being indicative of a suboptimal outcome, is a matter for regret” (p. 134). Duxbury cites Lord Reid’s dissent in Shaw v DPP as one such example of where a judge has regretted that they had to dissent from the majority. Duxbury then provides an interesting discussion on the nature of judicial dissent and how it has operated within a comparative and historical perspective.
In part three of his essay on Dissent, Duxbury is clear that a court can give a reasoned judgment without there being overt evidence of judicial dissent during the deliberations stage (pp. 152-154). But is there a benefit in having judicial dissents, as their existence might help to develop the law? Duxbury provides an example of where a dissent did lead to a statutory change in the law, such as Lord Denning’s dissent in Scruttons Ltd v Midland Silicones Ltd. Duxbury also considered that sometimes a dissenting opinion is adopted by a future appellate court: “Thus it is that dissenting judges sometimes lose the battle but win the war” (p. 157). Interestingly, Duxbury notes that even if a dissent is endorsed by a future court, it does not mean that the law will remain unaltered in the future (p. 158). Duxbury considers the arguments against dissents being said to have changed the law, giving a key example of where it might not be possible to prove a causal link between a dissent and subsequent reform. Returning to Denning’s dissent in Scruttons Ltd v Midland Silicones Ltd, Duxbury notes that “it would be rash to presume that the legislation was attributable, certainly that it was attributable solely, to… [the dissent]” (p. 161).
Part four of the essay is unsurprisingly informative and thoughtful, with consideration as to whether legal change is always a positive, whether dissents can be accused of creating uncertainty and demonstrates a lack of judicial discipline, and whether “serial contrarians [Duxbury’s dissenting judges] are often considered broken records”, who are incapable of winning over their colleagues (pp. 165-166). Duxbury challenges the arguments that judicial dissents are linked to democracy, or that dissenters are prophets, who are predicting the future consequences of a decision (pp. 169-172). The discussion is nuanced and balanced, willing to consider the differing positions, and capable of supporting his arguments with sound evidence. Duxbury observes that there could be a case for saying that dissents can act “as a foundation for future law”, but it is one that can “be easily overplayed” (p. 174). There is an interesting consideration as to why judges dissent, whether out of conscience, or the sense that the majority is wrong. Duxbury disagrees with Roscoe Pound’s assertion that a dissent needs to offer a “useful critique of the opinion of the court”, rather than just being made on a point of conscience, as dissents can be “cathartic” and serve as a way to convince others that the law is wrong (i.e., the death penalty in the United States of America) (p. 177).
In “Dissents, Decisions, and Courts”, the fifth part of his essay, Duxbury addresses the background context. For example, Duxbury observes that factors such as larger benches, or less workload might increase the chances of dissent (pp. 178-179). It is not hard to agree with Duxbury’s assertion that the reputation of a judge can impact how a dissent is received. Likewise another factor such as opinion writing style, which on its own would not have an impact “on how judicial dissents are received”, can be relevant (p. 180). He gives the example of how brevity, or longevity, in a dissenting opinion can both be praised and it is easy to think of cases before the House of Lords and Supreme Court in the United Kingdom where there were multiple dissents, one lengthy and the other brief, yet still both well-received (for example Lord Mance and Lord Bingham’s dissenting opinions in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Bancoult (No.2)).
Part six considers the English courts and the impact of the historical practice of judges giving individual judgments orally after hearing the appeal and not taking time to reserve judgment. Therefore, did this style of working lead to more dissents, as judges would be working individually and not have time to consult with their fellow judges? To answer this, Duxbury considered the history of the English courts and the practice of judges giving judgment against their own opinion in order to ensue unanimity (see for example Bryan CJ in Sutton v Forster), and the perceived need to hide judicial disagreement (pp. 190-191). This part of the essay provides a fascinating account of judges who felt that they needed to try and reach an agreed decision, the impact of when a court could not agree and the subsequent need to find a majority view out of a number of different positions. But as Duxbury notes, unanimity was preferred and gives the example of the impact of Lord Mansfield (Chief Justice of the King’s Bench), where because of his opposition to dissents, this meant that there was unanimity in the Court of King’s Bench (p. 196). Duxbury credits Mansfield’s approach to him being a mercantile lawyer (the need for certainty being very important) and his strong work ethic. This was not a view shared by all judges, including Mansfield’s successor Kenyon CJ, who could see the benefit of individual judges being able to dissent. As Duxbury observes, Mansfield’s approach to unanimity was not the norm, as whilst it was the ideal, it was departed from in practice (p. 197).
In part seven, Duxbury makes the case for how judicial unanimity declined in the English appeal courts and how there could be a possibility that two Law Lords, when jointly hearing an appeal in the House of Lords, might both reach a different decision (p. 202). It is interesting to read Duxbury’s account on the impact and development of the Judicial Committee of the Privy Council, and also the contemporary view within the English appellate courts that unanimity is to be preferred.
In part eight of his essay, Duxbury notes the reluctance of the Law Lords (from the nineteenth century onwards) to dissent and the idea of judicial self-restraint. Interestingly, Duxbury notes, that it is sometimes the case that, where there is no dissent in a decision, this begs questions as to why not (one example being R (on the application of Miller) v The Prime Minister (Miller No.2), where the UK Supreme Court was unanimous in its decision that the Prime Minister’s advice to the late Queen Elizabeth to prorogue Parliament was unlawful, albeit it was unsurprisingly a very controversial decision) (pp. 214-215). Duxbury considers how judges dissented, such as Lord Reid whose dissent was “opinions first and dissents second” (p. 218). He notes that many non-lawyers would only be familiar with exceptional cases of dissent, namely Lord Atkin’s dissent in Liversidge v Anderson, which concerned the Home Secretary’s powers to intern non-British nationals during the Second World War. One must nod in agreement with Duxbury’s comment “[t]hat English law offers up few memorable dissents does not mean that it yields only a meager crop of powerful dissents. Dissenting opinions in English case law are rather like restaurants in metropolitan neighborhoods. Anyone who makes the appropriate effort will discover a range of impressive ones, and will probably judge some of them to be a notch above the range…” Nonetheless, Duxbury notes the small number of important dissents and correctly notes that unlike in other common law jurisdictions, within England and Wales, there is a lack of consideration as to what makes for a great dissent. The discussion on quasi-dissents and when judges clearly stop short of dissenting in their opinions is equally fascinating.
In the remaining two parts of the essay, Duxbury takes the reader through a discussion of minorities as authorities (nothing that ‘[v]indicated dissents… are not particularly unusual… [as a] court capable of overruling a precedent quote often does so by aligning with dissent accompanying the earlier judgment instead of following the judgment itself’) and finally how judges reach an agreement (p. 235).
Duxbury’s essays will appeal to both academic and practicing lawyers, students of law, and members of the judiciary. The appeal of this book will undoubtedly be strongest amongst those individuals either based in a common law jurisdiction, or who have an academic or professional interest in the common law. The subject-matter within the book and analysis offered, might have justified (subject to more elaboration) publishing both essays as standalone books. The inner legal historian within many lawyers will especially enjoy Duxbury’s extensive footnotes, and these will no doubt lead many readers down the rabbit hole of their own further research. The book is thoroughly researched and is an enjoyable read. I will certainly be returning to this book as a tool for my own research and trust that many other academics will do so also.
CASES:
Bancoult v Secretary of State for Foreign and Commonwealth Affairs, [2008] UKHL 61.
Godmanchester Town Council v Secretary of State for the Environment, [2007] UKHL 28, [21]-[22].
Liversidge v Anderson, [1942] AC 206.
Miller v The Prime Minister, [2019] UKSC 41.
Shaw v DPP, [1962] AC 220, 272.
Scruttons Ltd v Midland Silicones Ltd, [1962] AC 446, 481.
Sutton v Forster, YB Mich 1 Rich III 1 (1483).
© Copyright 2023 by author, Chris Monaghan.
Intricacies of Dicta and Dissent
