obiter dictum

An obiter dictum (Latin for " by the way what is said ") is a view expressed in a decision of a court of legal opinion that does not carry the precipitated decision but was only expressed because the opportunity arose to do so. The contrast to the obiter dictum is the ratio decidendi.

Last instance courts add their judgments occasional obiter dicta in, because otherwise for the crucial judges often for a long time has no chance to express their interpretation of the law to similar cases or principle, which plays no role in the case. This is because in some areas has long been a well-established case-law, so that no lawsuits are filed, because this would only be successful if a revised interpretation of the law would apply. This circuit between the absence of a revised legal opinion and the mutually resulting lack of convictions involving obiter dicta break.

Criticism

After the former BAG Vice President Hans -Jürgen Dörner believes have obiter dicta " the weakness, the concrete legal findings of the case contribute nothing to confuse the reader regularly and are often later findings in the way ." At best, wearing a obiter dictum to legal training. Apart from the " right moment confusion " described by Dörner is also a risk of disregard of the principle of separation of powers. The court has only the particular case, so on the present dispute to decide. Whenever the court by obiter dictum applicable law, it takes over his decision before the contract beyond legislative competence of the legislature. This also applies to the German Federal Constitutional Court: Ultima ratio of its competence would be a declaration of invalidity pursuant to § 31 Section 2 Sentence 2 BVerfGG.

On the other hand, can also announce future possible changes in the case law and so loose confidence in a settled case-law, which the rule of law offered principle of legal certainty is done enough obiter dicta.

Obiter dicta by State

Germany

A well-known obiter dictum was pronounced in 1993 by the Second Senate of the Federal Constitutional Court in its judgment on the revision of abortion. The Senate noted that a legal qualification of the existence of a child due to not come as a source of damage of the Constitution into consideration. Therefore, it forbids himself to comprehend the maintenance obligation for a child than harm. This finding, which was for the actual judicial review without any meaning, the Second Senate objected to the jurisdiction of the Federal Court on the liability of doctors for unwanted pregnancies. The Higher Regional Court of Dusseldorf noticed then, a " casual and non-binding Remarks" of the Federal Constitutional Court does not result that neither damages nor damages were granted. The Federal Court, however, saw it differently and adapted its case-law the provisions of the Federal Constitutional Court on.

Common law

In the Anglo-American common law obiter dicta are different than the ratio decidendi of a judgment in a precedent not binding precedent, not binding on the lower courts. Nevertheless, they are often involved in decisions.