I had the opportunity of meeting Justice Michael Kirby yesterday while he was giving a talk at UNSW, and it was pretty inspiring. He’s famous for being a big of a renegade judge– always the social justice advocate, he often held the dissenting opinion whenever the majority of High Court judges ruled in favor of decisions that were likely to overlook the individuals in a move towards increasing libertarianism. It’s really easy to read his work in the textbooks and forget that, at the source of it all, is a human.
His general idea was that throughout life, it’ll never be enough to pride yourself on being neutral– you need to have values. You need to do what you believe in, and you need to explain what you believe in. You need to try and understand others. Only then can anyone judge.
Having an opinion is a difficult thing though, isn’t it? Perhaps the difficulty comes because having an opinion is responsibility. Indeed, most of the people who we don’t like tend to be people who have an opinion who can’t justify it or who don’t stand by it responsibly.
Slightly related: in “Anatomy of a Torts Class” (1985), James Boyle wrote:
“My claim here is that you can learn argument and become proficient at it quickly without confusion or mystification. In the rest of this handout I attempt to explain how you can do this, but first a warning: this set of arguments and techniques is not a substitute for political, economic, or moral understanding of the law. My descritption should show you taht these argumentative techniques are, by themselves, incapable of explaining the cases or teh ‘rules’, because for each argument or technique there is a counterargument. Without some political choice as to which side one is going to favour, the arguments are just like a pairs of cliches, e.g., many hands make light work vs. too many cooks spoil the brother; a stitch in time saves nine vs. cross your bridges when you come to them.
Like cliches they appear convincing because the judge only uses one of them at a time; but you have to learn that there is always another, opposite one. Until you learn to do this, you will be fooled by the shell game of judicial rhetoric, which appears to deduce solutions from ‘legal reasoning,’ when in fact those decisions rest on political, moral, or economic decisions.”
Basically– having an opinion is important, in my opinion. One might not always be popular because of a dissenting opinion, but one ought not be popular for having no opinion at all.