THE PRECIOUS VALUE OF DISSENT

Nowadays dissent seems to be a word to be avoided at all costs. In an era where opinion alignment, cancel culture, wokeism, and many other dynamics we see in social relations are becoming common, dissenting in many cases equals a ‘social death sentence.’ Today, thanks to the all-powerful internet we can see trends of the opinion-making machine in real-time. From YouTube, Twitter (now “X”), Facebook, or TikTok, you name it, we see a concerning tendency to avoid dissent at all costs. Usher a different opinion on a trending issue and you are prone to be labelled in the most obnoxious forms. Take the case of gender pronouns in the Western world and you have a whole recipe for turmoil.[1] JK Rowling, Hellen Zille, Dave Chappelle, Ricky Gervais, and Chris Rock are just a few among many examples of personalities who dared to issue a different perspective and present facts on some of the trending issues in the modern world. More astonishing is the case of Justice Julia Sebutinde of the International Court of Justice who wrote a dissenting opinion in the recent decision on the genocide case presented by South Africa against Israel. Many have been labelling her as a kind of a “sell-out” for upholding some points presented by Israel. However, by accusing her, many discard the fact that she is a very experienced judge who, irrespective of her nationality or colour, has the prior obligation to apply the law and rely on facts – and that’s what she did.[2] Unfortunately, the tendency to discuss people and feelings instead of discussing facts and ideas drives many to see dissent as a personal attack, rather than a different point of view.

Let us take the example of legal cases. A trial lawyer knows very well that to make a good case must carefully read the arguments and opinions of the opponent. Failing to read them carefully can make a huge difference between winning a case or falling into a hermeneutical fallacy – trust me I know, ‘been there (smiles). Ergo, a good trial lawyer does not only read the opponent’s arguments but reads them profitably. Nietzsche wrote that reading profitably “...is the capacity for absorbing facts without interpreting them falsely, and without losing caution, patience and subtlety in the effort to understand them.”[3] This shows that to thrive in litigation one must be able to welcome dissent, by reading the opponent’s arguments ‘with profit.'

Another excellent example of the precious value of dissent is found in the Courts of Law. As a general norm, cases that reach the Supreme Court are heard by a collective of judges. The procedures may vary from country to country, some under common law, others under civil law jurisdictions (or a combination of both), but commonly, such cases are handled by a collective of judges. We can even mention the “World Court”, which is the International Court of Justice that by rule has a collective of judges, from all regions of the world, and currently fifteen judges are sitting on the bench. Reportedly, in Mozambique, my home country, there are currently twelve judges sitting on the Supreme Court bench. Consequently, as expected, no such collective of experienced legal thinkers will agree on all issues. Dissenting is in most cases, unavoidable, and differing thinking groups among the judges, with one outnumbering the other will naturally emerge. Here is when we see the precious value of dissent at its best. The ‘winning group’ writes the majority ruling which is upheld by those agreeing. What about those who disagree? They make use of a powerful tool – the dissenting opinion. I believe that if one wants to see the application of law coming to life, its usefulness being challenged, and its justiciability being put to test, no better litmus test will expose the resilience of such a law than the dissenting opinion.[4] We just to have a look at the Supreme Court of the United States - by far, one of the most known in the world - to see the relevance of dissent. Just consider the dissenting opinions of Justice John Marshall Harlan - known as the Great Dissenter - at the beginning of the Jim Crow era, to the dissenting blocks in the Warren Court. And more recently, how remarkable were the dissenting opinions of Justice Scalia (Conservative) and Justice Ginsburg (Liberal), each one on the extreme opposite side of the aisle.? It follows that the examples given above, mostly confined to the legal industry, bring about the importance of being tolerant and ready to entertain dissent. And in my opinion, without dissent, the legal practice would be incomplete and devoid of value.

Dissent is extremely important, not just in the legal industry but in life in general. If we are open to considering opposing views, and take the time to evaluate their worth and fact-check them, wouldn't this lead to growth? In many cases, we discover a new subject, read an amazing book, or learn another language, culture, or trade, all because of a dissenting view or opinion. At the end of the day, in most cases, dissent is just a different perspective on issues, nothing more. Therefore, by fostering a welcoming attitude towards opposing arguments - not necessarily agreeing but understanding them - we can become more tolerant and, above all, appreciate the precious value of dissent.

[1] The case of Jordan Peterson, a well-respected Canadian university professor, being forced to undergo "re-education" for his refusal to use certain pronouns, is a clear example of the risks associated with dissenting. It bears note that the re-education is commonly used as a control tool. In my home country, Mozambique, re-education was heavily employed by the regime of the day (1975 - 1989), against those with divergent thoughts, that is, dissenters.

[2] Her insightful dissenting opinion can be accessed here.

[3] The Anti-Christ, Aphorism 52.

[4] The European Court of Human Rights is renowned for making significant decisions in the field of human rights. One such decision, related to anonymous births, was made in the Odièvre vs. France (Appl. no. 42326/98) case. The decision is remarkable, particularly because of the dissenting opinion written by Judges Wildhaber, Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens, and Pellonp??. I highly recommend reading excerpts of the decision, which can be accessed here.