Legal Argumentation on Trial: Dissenting Judicial Opinions in Cases Related to Racial Discrimination

Abstract

In this paper, I try to approach the topic of racial discrimination from the perspective of contemporary research on legal reasoning and argumentation, by attempting an argumentative analysis of three cases from the practice of the European Court of Human Rights related to the segregated education of Roma children. In two of the selected cases, the judicial decisions are not unanimous, but reached through majority vote, and their justifications are accompanied by dissenting opinions of the judges that disagree with the majority opinion. The point of this analysis is to shed some light on the complex nature of the practical application of normative mechanisms directed against harmful social practices, such as racism and xenophobia. The functioning of these mechanisms, enacted, inter alia, through judicial activity, confronts the general challenges that stem from the interpretive and dynamic nature of legal reasoning and argumentation. In addition to these, however, the judges in the selected cases also had to tackle the difficulties related to the specific circumstances of different cultural, historical and legal traditions, and current realities, in the vast social area relevant for the jurisprudence of the European Court of Human Rights. Identification and elaboration of the conflicting pleas and arguments in relation to the outcome of a single case will be used as an illustration of the importance of the differences in underlying “legal ideologies” and different prioritizing of legal and societal values by individual judges, in assuring the legal protection against different forms of racial discrimination.