Difference Between Ratio Decidendi and Orbiter dictum

One of the most confusing terms every Law student must have come across during his/her legal studies is “Ratio Decidendi” and “Orbiter dictum“. These two terms are synonymous in that they are both part of every judgment given in a court. However, they are not the same.

Difference Between Ratio Decidendi and Orbiter dictum
Difference Between Ratio Decidendi and Orbiter dictum

In deciding legal issues, the law normally makes two types of legal pronouncement. The first is based on the material facts before the court. This is the ratio decidendi and it constitute the case law. The other pronouncement is not based on the material facts before it. This sort of legal pronouncement is called “orbiter dictum” and is not binding as it does not form part of the case law.

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Understanding these terms will go a long way to determine your ability to explain which part of the judgement of a court is important for lower courts to follow in their own judgment. In this article, i will briefly explain the differences between Ratio Decidendi and Orbiter dictum. I highly recommend that you read this work carefully if you really want to be able to differentiate between the two.

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What is the difference between ratio decidendi and orbiter dictum?

Ratio Decidendi simply means “reason for the decision“. The underlying idea is that every case which applies the law to a given set of facts is animated by a legal principle which is necessary to the decision arrived at, and it is the principle which form the binding elements in the case.

On the other hand, orbiter dictum are not based on the facts of the case. This can be a decision made on the jurisdiction of court or any other thing that is not based on the facts before the court.

Take for example: if a Judge is deciding a matter that is based on whether a trespasser can be killed while tresspassing, and his judgment was that the defendant should not be convicted because “the trespasser had already been warned before his death“, that automatically becomes the ratio decidendi.

It is the reason or legal principle backing the judgment of the court.

Using the same example above, the orbiter dictum could be statement the judge made during the proceedings that does not necessarily relate to the facts of the case at hand.

To explain further, it is important to note that the actual decision on the facts of the case described as re judicata, is not binding only on the parties to the action. This is different from ratio decidendi. It has been suggested by Ferrari and Dougdale that ratio decidendi is simply a convenient term to sum up the flexible method of case law reasoning being used as a means of bridging the gap between reasoning by analogy and reasoning by rules.

There are two suggested ways to determine the ratio decidendi. The first advocated by Professor Goodhart is for the judge to take account of all the facts treaded by the earlier judge as material facts and eliminate all facts treated as immaterial by the judge.

This is because a principle of law may depend as much on the exclusion of immaterial facts as it does on the inclusion of the material facts. The judge thereafter looks at the case before him to determine whether the material facts present and, once they are, he is bound to hold that principle if judicial precedence applies.

Another approach for determining the Ratio Decidendi advocated by professor Julius Stone is to determine the appropriate level of generality in the application of the principle of ratio decidendi. It is emphasized here that the later court considering whether he is bound by a case in the light the exigenerality before him, determines the appropriate level of generality by deciding when rule enunciated by the earlier case will be too wide or too narrow.

If after applying any of those approaches the court determines that the facts of the present case are distinguishable from the earlier case, the court is entitled to refuse to apply the earlier rules by the principle of distinguishing the present case unfettered by the ratio decidendi of the previous case-law.

Differentiate between Ratio Decidendi and Orbiter dictum
Differentiate between Ratio Decidendi and Orbiter dictum

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This is where I am going to stop on this topic. In a recap, i have explained that Orbiter dictum and Ratio Decidendi are two different legal terms even though they are both related to the doctrine of judicial precedent. While orbiter dictum actually means that part of the judgement of the court which is not binding and may not be concerned with the case at hand, Ratio Decidendi is the part of the judgment that gives reasons for that judgment. It is this part of the judgement that is binding on lower courts when there is judicial precedent.

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