Obiter dicta — judicial statements that are not part of the ratio decidendi — are one of the most underused tools in student essays. Understanding when and how to deploy them can elevate your work from competent to excellent.
1. What Counts as Obiter?
Obiter dicta include:
- Hypothetical reasoning: "If the facts had been different, I would have held that..."
- Dissenting judgments: The reasoning of judges who disagreed with the majority
- Wider observations: Comments on related legal principles not directly in issue
2. When to Use Obiter
| Situation | Example |
|---|---|
| No binding authority on point | Use obiter from a Supreme Court case to argue what the law should be |
| Critiquing the current law | Cite a dissenting judgment that identifies problems with the majority's reasoning |
| Predicting future development | Use obiter that signals the court's willingness to reconsider a principle |
| Comparative analysis | Use obiter discussing how other jurisdictions approach the issue |
3. How to Signal Obiter in Your Writing
Always make clear that you are citing obiter, not ratio:
- "Lord Steyn observed, obiter, that..."
- "Although not necessary for the decision, Lady Hale noted that..."
- "In his dissenting judgment, Lord Sumption argued that..."
4. Famous Obiter That Shaped the Law
- Lord Atkin's "neighbour principle" in Donoghue v Stevenson was arguably broader than necessary for the decision but became the foundation of modern negligence law
- Lord Denning's obiter in numerous cases anticipated developments in contract law, estoppel, and judicial review decades before they were adopted
- Lady Hale's observations in Radmacher v Granatino on the enforceability of pre-nuptial agreements influenced subsequent legislation