Legal System | Judicial Precedent
Judgment: Obiter Dictum
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Introduction
- propositions of law stated by a judge which is not crucial for his conclusion is referred to as obiter dicta (
other things said
) - obiter dicta is not binding
- distinguishing between ratio decidendi and obiter dicta is difficult
Role
- despite not being essential to the court's decision obiter dicta has a role in judgments
- wider remarks than are necessary to decide the particular case
- speculate about the decision if the facts of the case had been different
Howe (1987)
- ratio decidendi of case: duress is no defence to murder
- House of Lords obiter dicta: duress is no defence to attempted murder
Brown (1993)
- ratio decidendi of case:consent is no defence to injury caused by sadomasochistic activities
- House of Lords obiter dicta: consent can be a defence to injury caused by tattoos, body piercing and ritual circumcision
- put forward what ecision would have been if he had not been bound by judicial precedent
- dissent from the majority decision