The Intricacies of Dicta and Dissent

Neil Duxbury

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English

Cambridge University Press
12 August 2021

Law; Jurisprudence & general issues; Jurisprudence & philosophy of law; Legal skills & practice; Courts & procedure

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on - and will prompt lawyers to pose fresh questions about - the common law tradition and the nature of judicial decision-making.

By: Neil Duxbury
Imprint: Cambridge University Press
Country of Publication: United Kingdom
Dimensions: Height: 229mm, Width: 152mm, Spine: 14mm
Weight: 400g
ISBN: 9781108794886
ISBN 10: 1108794882
Pages: 278
Publication Date: 12 August 2021
Audience: Professional and scholarly , Undergraduate
Format: Paperback
Publisher's Status: Active

Preface; Table of cases; Prologue; Essay I. Dicta: introduction; 1. The civilian dimension; 2. Case law as common law; 3. 'Obiter' as legal entity; 4. Dicta depicted; 5. Oblique strategies; 6. Engines of confusion; 7. The necessity test; 8. Cheap talk; 9. Dicta and dicta; 10. Nearly law?; 11. Observation and authority; 12. The sources problem; Essay II. Dissent: introduction; 13. Some preliminary observations on dissent; 14. The nature of judicial dissent; 15. Without contraries is no progression?; 16. Stalemates and motivations; 17. Dissents, decisions, and courts; 18. The tug of unanimity in England's courts; 19. Dissent in an apex court; 20. When is a dissent not a dissent?; 21. Minorities as authorities; 22. Are we agreed?; Index.

Neil Duxbury is Professor of English Law at the London School of Economics. He is author of Patterns of American Jurisprudence (1995), Random Justice (1999), Jurists and Judges (2001), Frederick Pollock and the English Juristic Tradition (2004), The Nature and Authority of Precedent (2008), Elements of Legislation (2013), and Lord Kilmuir (2015).

Reviews for The Intricacies of Dicta and Dissent

'Professor Duxbury provides us with a wealth of scholarship and some valuable insights into two aspects of judging which have not received much attention to date. In particular, he shows us how the two are inter-related - all dissents being essentially obiter dicta - and debunks the myth that today's dissent is tomorrow's orthodoxy - although I hope that it is not always a myth.' Brenda Hale, the Baroness Hale of Richmond, former President of the Supreme Court of the United Kingdom 'A very thoughtful discussion of two aspects of judicial practice which deserve more attention, exploring how obiter dicta are used to fit an individual case into a wider principled legal scheme and what moves judges to write dissents. It encouraged me to reflect more deeply about my own judicial writing.' Philip Sales, Justice of the Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council 'In these twin essays of breathtaking range and erudition, Neil Duxbury illuminates two largely unstudied ways in which judges contribute to the common law by expressing views that create no binding precedent. Anyone interested in the craft of judging will be wiser, as well as hugely well informed, after reading this book.' George Leggatt, Justice of the Supreme Court of the United Kingdom