Beyond the majority: Exploring the discourse of separate opinions

Judicial discourse has attracted its fair share of academic attention from a variety of perspectives, and yet, one of its most characteristic realizations remains somewhat understudied. Separate opinions, also known as votum separatum (Goźdź-Roszkowski 2020: 381), are used by judges, at least in certain judicial systems, to convey their individual views on a legal case. Unlike the majority opinion, which represents the official decision of the court, a separate opinion provides standpoints of a single judge or a group of similar-minded judges that diverge from the majority opinion, of those judges “who lost their case in camera” (Bruinsma 2006: 360), and want to disagree, clarify or expand on a particular point. The discourse of separate opinions is a fascinating terrain for an exploration from a legal linguistics standpoint (Goźdź-Roszkowski 2020; McKeown 2021). It opens a window into the mechanisms of legal argumentation (Goźdź-Roszkowski 2024) and dialogical banter (Garzone 2016; Extebe 2020) between the majority and the minority. Since “dissident judges are not bound by the straightjacket of the majority judgment and its legal validity, [they can] […] express their opinions freely and follow their own convictions” (Bruinsma 2006: 360). Separate opinions are also pragmatically intriguing, as they must balance between some open confrontation and considerations of professional politeness (Kurzon 2001; Nikitina forthcoming) in their evaluative sections. At an international level, these opinions become curious instances of L2 legal rhetoric, as judges working in international courts must formulate their thoughts in the court’s official language(s), frequently different from their native ones.