«Separate opinion» as a unique independent genre of judicial discourse: practice of foreign courts

Abstract

The article examines the main characteristics of a separate opinion of the judge as a unique independent genre of judicial discourse. It is emphasized that a special opinion of consent, or simply opinion, is declared in cases where the judge has no objection to the decision of the college itself and joins it, but either considers the above arguments or ways of resolving the legal dispute unsuccessful, or brings to argumentation additional consideration. This type of special opinion is characterized by greater freedom of expression of legal position in terms of content and arguments. It is noted that the constitutional justice of Ukraine formed a model of complete openness of a separate opinion of the judge of the Constitutional Court of Ukraine, the highest degree of which is the publication of a separate opinion together with the decision. A separate opinion of the judge of the Constitutional Court of Ukraine is determined by such that should not be confidential. It is proposed to identify a special opinion of a judge of a collegial body as an optional, structural and functional element of a judgment that is entered into the text of a decision or attached to it in the form of a separate document that has no obligatory legal force, but exists in an inseparable logical, semantic and structural. The main court decision, which determines its content and context and is characterized by individual argumentation, emotionality, imagery and evaluation. A separate opinion is an expression of a position on an issue that has already been decided by the court. This is the cry of the soul about the fact that certain arguments of the judge were not reflected in the motivational part of the court decision, or he does not agree with the decisive part of it. Special opinion is a unique independent genre of judicial discourse, in which argumentation is achieved, on the one hand, by logic and appeal to the letter of the law, and on the other, by the use of various means of emotional linguistic influence. The Institute of Distinctive Opinions serves as a guarantor of judicial independence and enables judges to position themselves not only as a part of the discursive expert community, but also as a sovereign person, a carrier and translator of a subjective creative legal position. Key words: a separate opinion of the judge, judicial discourse, constitutional justice, the Constitutional Court of Ukraine, legal positions, court decisions, argumentation.