HOW DISSENTING JUDGMENTS HELP US UNDERSTAND THE ROLE OF FAIRNESS IN THE DEVELOPMENT OF THE COMMON LAW. IN LIGHT OF MABO (NO 2) V QLD (1992) 175 CLR 1 AND CARR V WA (2007) 232 CLR 138.

Abstract

I argue that dissenting judgments have an immense role in developing the law through the lens of fairness and that it is because of how these judgments challenge the majority judgment by presenting the flaws that were not resolved and tested in accordance to legal principles such as fairness which is usually the main principle in dissenting judgments as they highlight the social implications of the majority judgment.

The dissenting judgments develop the common law in the long term by making it responsive to social changes in future cases where it can be used as a starting point to create a new law compatible with the current social values, enhancing fairness as a legal principle while maintaining the coherence of the legal system. A great example of the role of fairness is the dissenting judgments in Mabo (No 2) v Qld (1992) 175 CLR 1 and Carr v WA (2007 232 CLR 138 which sets an example of how it can have a vital and crucial role in developing the common law and ensuring its dynamicity.

Even though there are some critics about the role of dissent in developing the Common law, such as dissent might affect the certainty of the legal system and doctrine of precedent, which might lead to compromising the credibility before the public, the role of dissent can be balanced to avoid such critiques by ensuring these legal principles are not affected but align with the principle of fairness, and that can be done by accurately testing the precedents to see the ability to be applied before start dissenting.