אורן פרז (פורסם לראשונה בבלוגו 'Regulatory Paradoxes')
What is the value of the well-established legal tradition of “dissent”? In most common law jurisdictions, when courts issue a split decision, they present the dissenting opinions alongside the majority position. But this is not a necessary feature of court procedures. One could imagine system in which only the majority view would be published with the debate continuing internally.
A recent interesting take on that question comes from the debate about the reference to consensus in transnational regulatory scientific institutions (RSIs) like the IPCC or ICNIRP. Scientists have criticized this practice as being inconsistent with the spirit of science. Scientific progress depends on “continual challenges to the current state of always-imperfect knowledge”.[1] The presence of credible minority views actually enhances the epistemic authority of science by demonstrating that the deliberative framework of the RSI has been sensitive to competing points of view.[2]
It is interesting to think about well-entrenched legal traditions through this different frame.
For some legal work on “dissent” have a look at: Lani Guinier, Foreword: Demosprudence Through Dissent, 122 Harvard Law Review 4 (2008) and William J Brennan Jr, In defense of dissents, 37 Hastings LJ 427 (1985).
For an interesting blogpost - Fighting Groupthink With Dissent
[1] Daniel Sarewitz, The voice of science: let’s agree to disagree, 478 Nature 7-7 (2011). Michael Oppenheimer, et al., The limits of consensus, Science Magazine’s State of the Planet 2008-2009: with a Special Section on Energy and Sustainability 123 (2008)
[2] Mike Hulme, Lessons from the IPCC: do scientific assessments need to be consensual to be authoritative?, in FUTURE DIRECTIONS FOR SCIENTIFIC ADVICE IN (Robert Doubleday & James Wilsdon eds., 2013) 142, 145-146
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