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BOOK REVIEW

DISAGREEMENT AND DISSENT IN JUDICIAL DECISION-MAKING

By Frederic Reynold

Wildy, Simmonds & Hill Publishing

ISBN: 978 0 85490 12 72

www.wildy.com



AN ENGAGING AND THOUGHTFUL ANALYSIS OF THE DISAGREEMENTS AND THE DISSENT OF OUR MODERN JUDICIARY

An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

It has often been said (and thought) that today’s dissent is tomorrow’s good law, especially in the hard cases. This important book by Frederic Reynold is proof that what underlies the dissent is what we really need to know about so that the root causes of the disagreement can be identified.

As Reynold says in his Preface, the book does not discuss the merits of the competing arguments and points of law. So, for Counsel, the main benefit of “Disagreement and Dissent” is about why and how disagreements occur and what they may mean “in the general scheme of things”. And this is exactly what we need at the Bar when we are presenting arguments at court because this book is for the advocate more than the academic.

Whilst Reynold recognizes that finding the right ‘tone’ for the book is a ‘tricky business’, the 5 parts cover the basic areas of current interest well. They are: what is exactly fair and just; clashes of principle and competing moral judgments; problems with the meaning of ordinary words; differing responses to constitutional and human rights issues; and what do these disagreements reveal about decision-making in out court of last resort? In our view, this is actually a goldmine rather than a minefield for the dedicated jurisprudent and legal theorist as well as the Supreme Court advocate!

The author succeeds with his aim of reproducing, in a way which is readily intelligible, the essence of a particular judgement. To this, he achieves the balance against the need to capture the flavour both of a judgment and the legal debate using what he describes as ‘a liberal use of direct quotation’. Also, by placing the cases names and citations in the footnotes makes the overall text easy to read through at one sitting.

As the main statement of the points out, this work provides “an engaging analysis of disagreement and dissent in judicial decision-making”. Reynold looks at the root causes of disagreement in cases decided over the last 25 years or so in the House of Lords and the Supreme Court, and the light they throw on the character of judicial decision-making at this level.

“Disagreement and Dissent in Judicial Decision-making” eloquently provides answers to a number of topical questions: to what extent, if any, have judges observed the distinction between legal policy (a legitimate matter of concern to them) and public policy (which generally speaking is not); can a non-lawyer be in a position to assess the merits of the competing views of the majority and the minority; can one talk in any meaningful sense of achieving "a balance" in the membership of the Supreme Court; and is the United Kingdom Supreme Court, in terms of character and function, heading in the direction of the US Supreme Court?

For many students, split decisions of the law lords and (since October 2009) justices of the Supreme Court have always exercised a particular fascination, and especially those decisions featuring a bare majority. The analysis Reynold displays illuminates a number of topical and contemporary concerns such as: the balance in the composition of, and the appointment of justices to, the Supreme Court; and the boundaries between judicial and political decision-making.

The latter point being one of the most difficult (and hard to swallow… or explain) for losing litigants so whoever said politics does not enter into such decisions is not, of course, wrong because we call it ‘public policy’ although it is made by unelected people.

As Frederic Reynold was reminded ‘in no uncertain terms’ by Sandra (when noting that his one previous book was published more than 40 years ago) that the time was now ripe to publish another book, we and many legal colleagues are very glad that he has followed this advice and done so! Thank you.