‘Until my death, I will count it a credit to myself that on August 29, 1867, in Munich, I found the courage to stand eye to eye against a thousand-year-old, many-thousand-headed, furious-eyed hydra … Yes, I am proud that I found the strength to deliver the first thrust of a lance into the hydra of public contempt’.[1]
Karl Heinrich Ulrichs, 1868
Introduction
Dissent is a word often heard by law students. At its core, the word refers to the manifestation of ideas, acts and omissions ‘that are alternative to existing or proposed ones’.[2] Not merely confined to judges, dissent can be found in all facets of the law. Within parliament, for example, Members of Parliament and Senators have been seen to cross the floor, going against their own party’s policies. It is also apparent outside of legal institutions, such as when people protest on the streets for unpopular causes. To this day, the value of dissent in the law remains controversial. On the one hand, many see dissent as an unnecessary hindrance to unified action.[3] In some courts in overseas jurisdictions, in fact, dissenting judgements are prohibited altogether.[4] On the other, many see dissent as an essential part of contemporary democracy - a mechanism to ensure advancements and critical thinking within society.[5]
This post argues for the latter view. To contextualise the ways in which dissent is viewed, it firstly outlines two separate views on dissent. The first view is by Michael Kirby - a former High Court Justice from 1996-2009 - who argues that dissent is essential for transparency and democracy.[6] The second view is by Susan Kiefel - the former Chief Justice of the High Court from 2017-2023 - who argues that judicial dissent can harm the integrity of courts.[7] It then looks at the First Homosexual Movement in late 19th and early 20th century Germany to illustrate the idea that dissent within the law can contribute towards significant change. At a time in which homosexual acts carried prison sentences, a new group of gay emancipation figures had given rise to a reconceptualization of homosexuality which has since found widespread favour in various legal systems. The dissenting ideas of these figures, it is argued, remains a testament to the value that dissent holds within the law.
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