When a panel of judges hears a case, it is the majority view that determines the outcome. But on rare occasions, it is a lone voice, which grabs the attention. This happened in our own Supreme Court a couple of weeks ago, in Radmacher (formerly Granatino) v Granatino  UKHL 42: the “pre-nuptial agreement” case. Legal students – feminist theorists, in particular – are likely to remember Lady Hale’s dissent for years to come.
The case was about whether courts should give effect to pre-nuptial agreements. Such agreements oust the usual principles of fairness and limit the rights of the parties at the time of divorce. The twist in this case was that it was the ex-wife, not the husband, who was trying to enforce the agreement. But, more commonly, it is women who are the losers. Many ask what is the point of the law giving married parties equal rights, if a man can persuade his fiancée to contract out of what would otherwise be due to her?
Lady Hale is the only woman ever to sit in our highest court. So when judgment was handed down, it was noticeable that she stood apart from the eight other justices. It was not merely that she differed from the majority view, and questioned if and when there should be a presumption in favour of honouring such agreements. She went further and, in the best tradition of dissenting judgments, recognised the symbolic nature of her position.
“The object of a [pre-nuptial] agreement” said Lady Hale, “is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled.” After citing an article from the Yale Journal of Law and Feminism, Lady Hale continued: “Would any self-respecting young woman sign up to an agreement which assumed that she would be the only one who might otherwise have a claim, thus placing no limit on the claims that might be made against her and then limited her claim to a pre-determined sum for each year of marriage regardless of the circumstances, as if her wifely services were being bought by the year? Yet that is what these precedents do.”
She may have been in a lonely minority of one, but Lady Hale’s comments had impact. Unlike the other justices, she seemed to speak directly from the perspective of a modern working woman. She went on to explain how her dissent went to the heart of why diversity in our judiciary is so important, not least for cases being decided at the highest level: “In short, there is a gender dimension to the issue which some may think ill suited to a decision by a court consisting of eight men and one woman. It is for that reason I have chosen to write a separate judgment . . .”.
Traditionally dissenting judgments were not favoured in England’s highest courts. Senior judges were supposed to keep their differences of opinion private. In the Privy Council, for example, they were allowed to do no more than write them in a special book that no one ever saw. But since the last century that has changed, and over time history has often vindicated the dissenter.
In other jurisdictions they have always honoured the dissenting voice. Oliver Wendell Holmes, who was a US Supreme Court justice during the early part of the twentieth century, disagreed with others so often that he became known as “the Great Dissenter”. His opinion in support of freedom of speech for those speaking against the US government, in the case of Abrams v US 250 U.S. 616 (1919), is still inspirational:
“The best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment . . . . While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death . . .”
Over time, it is Holmes’s dissent – not the majority view – that has prevailed. Some famous dissents have had a similar effect in this country. In the Second World War case of Liversidge v Anderson  AC 206, Lord Atkin took a different view from the other judges about government power. He did not think the Home Secretary should be able to construe a statute in any way he saw fit: “I know of only one authority” dead-panned the noble Lord “that might justify the suggested method of construction: ‘When I use a word’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’ . . . ”
The most memorable dissents, like Lord Atkin’s, often try to temper the seriousness of their rebellious disagreement, with humour. When all around you disagree, there is sometimes no option but to point out the futility of your situation. So it was in the very recent case of Oceanbulk v TMT  UKSC 44. Lord Justice Ward preferred the views of the lower court judge, to those of his fellow judges in the higher courts. But realising that there was nothing he could do to influence the result, he made his point with a playful flourish:
“There is little point in expanding upon the reasons [for my conclusion] for I am outnumbered, nay outgunned . . . it goes to prove what every good old-fashioned county court judge knows: the higher you go, the less essential oxygen of common sense is available to you. So I am unrepentant. With, of course, the greatest of respect to my Lords, I dissent”.