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‚A Performative Theory of Judicial Dissent in International Law?’, Dr. Hemi Mistry (University of Nottingham)

February 28 @ 13:0014:30

Lecture summary
Additional opinions – dissenting opinions, separate opinions, declarations and the like – are a familiar aspect of the international jurisprudential landscape. Yet, despite their ubiquity, there has been relatively little attempt to understand their institutional and systemic significance in the context of international law. To the extent that they have been theorised, focus has been typically – and understandably – upon ‘radical’ or ‘fundamental’ dissents. However, in this lecture, I argue that it is necessary to sharpen our understanding of the ‘everyday’ or ‘institutional’ dissent. Conventional accounts of the institutional function of judicial dissent, whether in the context of domestic or international judicial systems, can be grouped into three thematic categories: ‘dissent as transparency’, ‘dissent as opposition’ and ‘dissent as conscience’. Leaving aside the disagreement over whether judicial dissent should be institutionalised at all, these accounts of the institutional function of dissent are generally accepted with little dispute. Yet, while these conventional accounts may be normatively unproblematic, they fail to fully or coherently capture the mechanics by which judicial dissent operates upon institutional authority in practice. Irrespective of judicial dissent’s capacity to function, or be seen to function, in the ways envisaged by doctrine, this paper considers how a performative theory analysis of dissent – with its focus on form – may supplement conventional accounts of institutional dissent. By foregrounding form and, in turn the simple act of dissent, a performative analysis of judicia; dissent enriches our understanding of the different dimensions to the practice of dissent and its operation upon the world and cautions against an overly positivist assessment of its functions and utility.
Hemi Mistry
Dr Hemi Mistry is an Assistant Professor in Law at the University of Nottingham (UK), where she researches in the areas of general international law theory and international criminal justice. Prior to her appointment to this position in 2015, she completed her PhD, LLM and LLB all at the University of Nottingham. Hemi’s research is concerned with understanding the nature of judicial authority (both individual and institutional) in the context of international law. To date, her research has explored this through the prism of judicial dissent, that is, attempts to undermine or subvert that institutional authority. In 2014 she was awarded the Antonio Cassese Initiative Prize for Innovative Perspectives in International Criminal Justice for her paper ‘The Paradox of Dissent: Judicial Dissent and the Projects of International Criminal Justice’, published by the Journal of International Criminal Justice in 2015. 
Hemi is currently completing her monograph ‚Rebellious Jurisprudence: Judicial Dissent and International Law’, under contract with Hart. In this book, Hemi seeks to construct a general theory of dissent in international law which offers an account of significance of the institutionalisation of dissent for international law.
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February 28
13:00 – 14:30


Lauterpacht Centre for International Law, Finley Library