The Two Parts of Every Legal Decision

If a Judge has issued “Reasons for Judgment”, then you will find that there are two parts:

  1. Ratio, and
  2. Obiter.

In relying upon the case, as a precedent in future cases, you must make the distinction.

Meaning of “Ratio Decidendi”

When it comes to the interpretation of any case, understanding the components of the decision will be necessary.

The latin expression “ratio decidendi” is one of the most important phrases used in law. It stands for the “legal principle”, “the reason behind the decision” or “the rationale of the case”.

In essence, this is the important legal maxim drawn from the case. It is the essential part of the decision. Less important matters, or matters which are not material are unnecessary. They are non-essential, and often referred to as “obiter dicta” or “obiter” for short.

The ratio decidendi:

•·        represents the essential elements of the case

•·        recites the fundamental issues in the case

•·        requires a conclusion based of the actual facts in the case

•·        is necessary to the logic of the decision

•·        formulates the legal principles decided in the case

In short, it is the “holding” in a case, or the decision that the court held in a particular case.

The binding part of the case must be part of the ratio decidendi. The legal doctrine of stare decisis requires lower courts to follow the principles of the law enunciated by the higher courts. If the fact or principle is part of the ratio decidendi, then it is binding upon lower courts. If it is merely obiter dicta, then it is not binding.

Fundamentally, one of the roles of the judiciary is to determine in every case that which is part of the ratio, and that which is obiter. This is also the task of lawyers in subsequent cases.

A lawyer confronted with a difficult decision pronounced in a superior court will need to distinguish the case, from the one at bar. One of the opportunities is to argue that the superior court decision contained obiter on the point in issue.

It is also noteworthy that obiter of a very high court, or leading jurist is quite persuasive, and sometimes more significant that the ratio decidendi of another lower court.

Litigation often revolves around the distinction between ratio and obiter, and stare decisis (law related to binding precedents) hangs in the balance.

This is one of the most difficult challenges in the adversarial judicial system. If it weren’t, there would be no need for lawyers.

Meaning of “Obiter Dicta”

The latin expression “obiter dicta” means “by the way”. It is a collateral remark made by a Judge in the reasons for judgment. It is a “side remark” or “comment”. It is not part of the actual decision. It is a “passing statement” or “observation”.

The essential part of the judgment is the “ratio decidendi”, and anything else, which is non-essential is part of the “obiter dicta” or “obiter” for short.

When analyzing a court decision, it is important to distinguish between:

1) ratio decidendi, the essential, and

2) obiter dicta, the non-essential.

It is only the ratio decidendi of the decision which is binding as a precedent in terms of other Courts in accordance with the legal principle of “stare decisis”.

A judge may feel an obligation to offer a comment for the guidance of other litigants in other legal proceedings. In such cases, using obiter dicta is a welcome opportunity. No one had to pay for the litigation that resulted in the judge’s opinion. That is often a gratuitous expression of the law, frequently provided by a pre-eminent jurist.

Bora Laskin, Oliver Wendell Holmes, and Lord Denning all made ample use of the opportunity to express their thoughts, views and opinions on matters they thought were important, even if it were not specifically necessary in terms of the case before them.

Obiter by any one of these Judges was just like gospel. If it’s not the law now, beware, it’s going to be the law someday soon!

By the way, just as an unrelated side comment, the legal newspaper published by the students at Osgoode Hall Law School in Toronto is called the “Obiter Dicta.”

Brian Madigan LL.B., Broker

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