Judicial Loyalty Through Dissent or Why The Timing is Perfect for Belgium to Embrace Separate Opinions

Abstract

Belgian judges may well be among the loneliest of their peers due to Belgium’s legal framework. In an attempt to counter this unfortunate situation, we will start by outlining some contours of “judicial loneliness” in Belgium through a brief discussion of secrecy of deliberations, the wide-spread unus iudex practice, as well as a more recent phenomenon: judges who ventilate certain aspirations and/or frustrations often end up being the epicenter of fierce public polemics. Secondly, we will emphasize that the judicial function and its prerogatives have undergone significant change over the last decades thus justifying a new concept of loyalty in order to adequately approach the spreading of critical outcries by magistrates. In a final third part we will briefly state how the introduction of separate opinions – a well-known common law phenomenon – in the Belgian system could alleviate, to a certain extent, judicial loneliness while boosting public appreciation for the hard work judges are expected to deliver on a daily basis in a growingly pluralist society. The European Court of Human Rights (ECHR) constitutes a valuable example in this respect.