Communicating Dissent in Judicial Opinions: A Comparative,Genre-Based Analysis

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically, especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.