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A Performative Theory of Judicial Dissent

Mistry, Hemi

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Authors

HEMI MISTRY HEMI.MISTRY@NOTTINGHAM.AC.UK
Associate Professor



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.

Citation

Mistry, H. (2023). A Performative Theory of Judicial Dissent. Modern Law Review, 86(3), 729-755. https://doi.org/10.1111/1468-2230.12786

Journal Article Type Article
Acceptance Date Nov 15, 2022
Online Publication Date Jan 22, 2023
Publication Date 2023-05
Deposit Date Nov 16, 2022
Publicly Available Date Jul 23, 2023
Journal Modern Law Review
Print ISSN 0026-7961
Electronic ISSN 1468-2230
Peer Reviewed Peer Reviewed
Volume 86
Issue 3
Pages 729-755
DOI https://doi.org/10.1111/1468-2230.12786
Keywords Law
Public URL https://nottingham-repository.worktribe.com/output/13748420
Publisher URL https://onlinelibrary.wiley.com/doi/full/10.1111/1468-2230.12786

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