Reading Skills

How to Tell Ratio Decidendi from Obiter Dicta

How to Distinguish Ratio Decidendi from Obiter Dicta?

Common law cases tend to be many, many pages of continuous prose. This makes it difficult to distinguish the important parts of a case from all the other comments. While there is no certain method for distinguishing obiter dicta from ratio, this guide will help you get started.

What is the Ratio Decidendi?

The ratio decidendi of a case is the part of the judgment which binds later courts. It is the reasoning and rules used in the case which enable the court to reach its final decision.

Unless a later court decides to distinguish the case or has the power to overrule that court, they are obliged to follow an earlier case’s ratio decidendi.

Since the ratio decidendi is vital to the doctrine of precedent, it is important to be able to identify it.

What is Obiter Dicta?

If a statement in a case is not the ratio decidendi, then it is obiter dicta. Obiter dicta literally means ‘other words’. If a judge says something ‘obiter‘, they are saying it other than as the ratio decidendi.

Tips for Telling Apart Ratio and Obiter Dicta

Unfortunately, judges do not explicitly point out in their judgments when something is the ratio decidendi. This can make it difficult to tell the ratio from the obiter statements. Follow these handy tips, however, and you should be able to tell most of the time.

1. Is the Statement Necessary for the Outcome?

The first step is to ask: had the judge decided this legal principle differently, would they have reached the same conclusion? If the judge needed to rely on that particular legal principle to reach that conclusion, the statement is ratio decidendi.

2. Dealing with Conflicting Ratio

In rare cases, there might not actually be one clear ratio decidendi. This happens when the judges in the majority all agree on the outcome, but reach that outcome using different reasoning.

In Re Baden (No 2) (also known as McPhail v Doulton), all three judges in the Court of Appeal agreed that the trust was valid. However, all three judges gave different reasons for why the trust was not void for uncertainty of objects, and formulated the test for certainty of objects differently.

If you are writing a case-note for such a case, record what each judge says as if they are giving their own separate ratio. Otherwise:

  • In some cases the majority of non-dissenting judges use one approach and only a minority select a different approach. The majority’s approach is usually the ratio.
  • If every judge gives their own, different reasoning, the case has no strict ratio. A future court is likely to reach a similar outcome in similar cases. However, they might choose to adopt any of the different approaches, or develop an entirely new approach. For exams, it is still important to know what each judge said. That way, you can explain what a case’s outcome will be if a future court chooses a particular approach.
3. Clear Kinds of Obiter Dicta

A judicial statement is definitely obiter dicta if:

The court is speculating as to how a case with different facts would be decided.

The court is disapproving of, but not formally overruling, another case.

Both of these kinds of obiter dicta tend to be influential in future cases, even though they are not binding. Another kind of clear obiter dicta is anything said in a dissenting judgment. A dissenting judge disagrees with the rest of the court on how the case should be decided. Nothing they say is binding in later cases, though it might be influential.

4. Other Indicators of Obiter Dicta

Finally, you might have gone through the rules above and still not be sure whether something is ratio or obiter. To help you out, we’ll leave you with some key factors for distinguishing ratio decidendi from obiter dicta. Good luck!

  • Anything the judge says after using language such as ‘if I am wrong, then…’ or ‘I would conclude in the same way if…’ or ‘this would be the case even if…’ is likely obiter. Principles stated before this kind of language are likely to be ratio.
  • Does the statement relate to a dispute or law or a dispute of fact? If it relates to a dispute of fact, it is obiter dicta.
  • The more directly the statement relates to the core issue in the case, the less likely it is obiter dicta.
  • Prescriptive language is more likely to be the ratio than descriptive language.

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