Dicta-Suche:
DICTUM:
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Übersetzung:
Dt.Sprichwort:
In common law legal terminology a dictum (plural dicta) is any statement that forms a part of the judgment of a court,
in particular a court whose decisions have value as precedent under the doctrine of stare decisis.
Conceptually, dicta are divided into two types.
Ratio decidendi are those which form a part of the reason for the decision,
and are binding as precedent. Obiter dicta are those which are not binding,
but are merely editorializing, or explanatory.
The word dicta standing alone is often used as a synonym for obiter dicta,
although this usage is not technically correct.
An obiter dictum (plural obiter dicta, often referred to simply as dicta),
Latin for a statement „said by the way“, is a remark or observation made by a judge that,
although included in the body of the court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words „introduced by way of illustration, or analogy or argument.“ Unlike the rationes decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis, statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales, they can be strongly persuasive.
An example of an instance where a court opinion may include obiter dicta is where a court rules that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such a case offers opinions on the merits of the case, such opinions may constitute obiter dicta. Less clear-cut instances of obiter dicta occur where a judge makes a side comment in an opinion to provide context for other parts of the opinion, or makes a thorough exploration of a relevant area of law. Another example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and explains how he or she believes the law would apply to those facts.
In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta. A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage.
The ratio of the dissenting judge also contributes towards the obiter dicta of the case. In India, the Supreme Court gives binding force to many of its obiter dicta.
DICTA - The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.
Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination.
As one judge said, 'If general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled. What I have said or written, out of the case trying, or shall say or write, under such circumstances, maybe taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion.' And another said it is 'great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions.'
In the French law, the report of a judgment made by one of the judges who has given it, is called the dictum.
Ratio decidendi (plural: rationes decidendi) is a Latin phrase meaning „the reason (or rationale) for the decision.“
The ratio decidendi is:
[t]he point in a case which determines the judgment or
the principle which the case establishes.
It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower jurisdiction--through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of co-ordinate jurisdiction--however out of interests of judicial comity they generally try to follow co-ordinate rationes.
The process of determining the ratio decidendi is an analysis of what the court actually decided – essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion – all pronouncements that do not form a part of the court’s rulings on the issues actually decided in that particular case (whether they are correct statements of law or not) -- are obiter dicta, and are not rules for which that particular case stands.
Synopsis
The deft deployment of the ratio decidendi is one of the most powerful weapons in the lawyer's armoury. With a proper understanding of the ratio of a precedent, the advocate can in effect force a lower court to come to a decision which that court may otherwise be unwilling to make, considering the facts of the case.
The search for the ratio[nale] of a case is akin to a process of mindreading; one searches the judgment for the abstract principles of law which have led to the decision and which have been applied to the facts before the court. As an example, the ratio in Donoghue v. Stevenson would be that a person owes a duty of care to those who he can reasonably foresee will be affected by his actions.
All decisions are, in the common law system, decisions on the law as applied to the facts of the case. Academic or theoretical points of law are not usually determined. Occasionally, a court is faced with an issue of such overwhelming public importance that the court will pronounce upon it without deciding it. Such a pronouncement will not amount to a binding precedent, but is instead called an obiter dictum.
Ratio decidendi also involves the holding of a particular case, thereby allowing future cases to build upon such cases by citing precedent. However, not all holdings are given equal merit; factors that can strengthen or weaken the strength of the holding include:
* Rank of the court (Supreme Court versus an appellate court).
* Number of issues decided in the case (multiple issues may result in so called, multi-legged holdings)
* Authority or respect of the judge(s)
* Number of concurring and dissenting judges
* New applicable statutes
* Similarity of the environment as opposed to the age of the holding.
The ability to isolate the abstract principle of law in the vehemently pragmatic application of that abstraction to the facts of a case is one of the most highly prized legal skills in the common law system. The lawyer is searching for the principles which underlined and underlay the court's decision.
Challenges
The difficulty in the search for the ratio becomes acute when, as is often the case in the decisions of the Court of Appeal or the House of Lords, more than one judgment is promulgated. A dissenting judgment on the point is not binding, and cannot be the ratio. However, one will sometimes find decisions in which, for example, five judges are sitting the House of Lords, all of whom purport to agree with one another but in each of whose opinions one is able to discern subtly different ratios. An example is the case of Kay v. Lambeth LBC, on which a panel of seven of their Lordships sat, and from whose opinions emerged a number of competing ratios, some made express by their Lordships and others implicit in the decision.
Another problem may arise in older cases where the ratio and obiter are not explicitly separated, as they are today. In such a case, it may be difficult to locate the ratio, and on occasion, the courts have been unable to do so.
Such interpretative ambiguity is inevitable in any word-bound system. Codification of the law, such as has occurred in many systems based on Roman law, may assist to some extent in clarification of principle, but is considered by some common lawyers anathema to the robust, pragmatic and fact-bound system of English law.