The Politics of Judicial Dissent in Europe: The European Court of Human Rights and the European Court of Justice

Contemporary Europe is characterized by a progressive judicialization of politics, both domestically and in the international courts – the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) – that increasingly reach within the borders of their members.  In recent years, scholars have increasingly examined the behavior of these courts, yet they have ignored one critical element, namely the use, or non-use, of dissenting by individual judges.  It is a striking fact that the two great European international courts have adopted diametrically opposed practices with respect to dissent: ECtHR decisions almost always include dissenting opinions, while the ECJ has suppressed all signs of dissent.  Yet we know very little about why these courts adopt different approaches to dissent, or about the effectsof dissent on judicial independence and legitimacy. 

      This paper is the first to offer a conceptual framework for, and a comparative empirical analysis of, the causes and consequences of international judicial dissent. First, we review the substantial literature on dissent in American courts, noting both the contributions and limits of this literature as applied to European courts.  Second, we offer our theoretical framework for understanding the causes of judicial dissent, and provide a preliminary empirical test of these hypotheses, focusing on the contrast between the ECtHR and the ECJ.  Third and finally, we examine the consequences of international judicial dissent, assessing the impact of dissent – or its absence – on judicial independence, legitimacy, collegiality, and the nature and quality of jurisprudence.