Dissent and Fairness in the Development of the Law

Abstract

Far from mere disagreement, dissenting judgments are engines of legal evolution. This essay explores how dissent sharpens the common law's understanding of fairness by challenging dominant interpretations and offering principled alternatives. Focusing on Mabo v Queensland (No.2) and Carr v Western Australia, it argues that dissent not only safeguards judicial independence but also bridges legal certainty and social justice-ensuring fairness keeps pace with society's evolving values.