Legal Method - Obiter Dictum

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  • Created by: Alasdair
  • Created on: 29-10-20 16:21
Obiter dicta
Other things said. A proposition of law, stated by the judge, which is not necessary for his or her conclusion is called them this.
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Negatively defined
Obita dicta is this as it is anything which does not form part of ratio. Not binding on future courts, but may be persuasive according to reputation of judge in question, seniority of court and circumstances in which they were made.
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One reason a proposition may be orbiter
If it is wider than necessary to decide particular case.
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Another reason a proposition may be orbiter.
If a judge speculates about decision he or she would have made if the facts of the case had been different.
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Third reason a proposition may be orbiter.
If judge says what his or her decision would have been if he or she had not been bound by judicial precedent.
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Fourth reason a proposition may be regarded as orbiter. (I)
If it forms part of a dissenting judgement. A dissenting refers to situation in appellate court where one judge (three-judge Court of Appeal) or one or two judges (five-judge Supreme Court) finds for opposite party to majority of judges.
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An example of the fourth reason a proposition may be regarded as orbiter.
If, in a three-judge Court of Appeal, two judges find in favour of respondent and dismisses appeal, majority view will prevail and third judge will be said to have produced dissenting judgement.
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Other cards in this set

Card 2

Front

Negatively defined

Back

Obita dicta is this as it is anything which does not form part of ratio. Not binding on future courts, but may be persuasive according to reputation of judge in question, seniority of court and circumstances in which they were made.

Card 3

Front

One reason a proposition may be orbiter

Back

Preview of the front of card 3

Card 4

Front

Another reason a proposition may be orbiter.

Back

Preview of the front of card 4

Card 5

Front

Third reason a proposition may be orbiter.

Back

Preview of the front of card 5
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