Dissenting opinion, constitutional interpretation and popular constitutionalism

Author/s Lucia Corso
Publishing Year 2011 Issue 2011/1 Language Italian
Pages 29 P. 27-55 File size 273 KB
DOI 10.3280/SD2011-001002
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A dissenting opinion is the mechanism used by judges who disagree with the conclusions reached by the majority of the bench to air their own opinions. This essay describes the reasons behind this phenomenon, referencing American constitutional law, and proposes the thesis that the very presence of a dissenting opinion changes not only the content of constitutional jurisprudence, but also its style, setting off a virtual discussion between the judiciary and the public that also involves the latter in debates about fundamental rights. The author responds to the scepticism espoused by certain Italian neo-constitutionalists by outlining the hypothesis that dissent has the potential to improve a legal system’s democratic quality.

Keywords: Dissenting opinion, Constitutional interpretation, Popular constitutionalism, Demosprudence

Lucia Corso, Opinione dissenziente, interpretazione costituzionale e costituzionalismo popolare in "SOCIOLOGIA DEL DIRITTO " 1/2011, pp 27-55, DOI: 10.3280/SD2011-001002