Obiter Dicta Research Articles

Other Things Said

The common view in legal education and practice has been that obiter dicta or ‘the things said in passing’ are not part of the corpus of legal reasoning that is binding, which then begs the question, ‘If so, what is their value?’ This review essay offers a detailed overview of Neil Duxbury’s The Intricacies of Dicta and Dissent, highlighting the significance of Duxbury’s contribution to the literature on this important subject. Against a backdrop of few book-length treatments of these commonly deemed ‘subsidiary’ forms of legal reasoning, Duxbury offers a comprehensive historical account of dicta and dissent in adjudication, and of their varied impacts on legal development. Though falling short of advancing a normative account, Duxbury’s book nevertheless provides a nuanced and balanced description of the natures of dicta and dissent, engaging with the complexities of judicial reasoning beyond a conventional black-and-white approach. In so doing, this book sets the groundwork for any normative analysis of the role dicta and dissent can play in shaping common law principles. It is anticipated that this book will remain an invaluable contribution to the field of judicial interpretation, especially as a necessary, vital resource upon which future scholarship may build.

Latin legal terminology in national jurisprudence: modern trends in the application of ancient concepts

The article is devoted to the study of the application of Latin legal terminology in Ukrainian jurisprudence. At the outset of the article, the author emphasizes on the correlation of Latin terminology with Roman law, as well as the significance of the reception of Roman law for the further preservation of Latinisms. Particular focus is given to the retrospective analysis of the incorporation of Latinisms into the Ukrainian language. The first trend highlighted by the author is the etymology of Latinisms in court decisions; the second is the Latinisation of legal terms in court decisions. The application of Latinisms in national and foreign scientific research is considered from the angles of (1) being conditioned by practical needs, (2) the element of citing normative provisions, (3) a way of preserving tradition, and (4) a stylistic tool. The article lists a large number of Roman legal terms that are actively applied by Ukrainian judges. At the same time, the author claims that not all Latin terms applied in jurisprudence are related to the sources of Roman law: firstly, some Latinisms date back to the Middle Ages, as well as the New and even Modern times; secondly, individual Latinisms express legal phenomena (principles, doctrines) that originally belonged to the Anglo-American legal tradition. At the same time, the Latin legal terminology applied in court decisions is very diverse and covers a number of legal phenomena. Particular attention is paid to the application in judicial practice of legal doctrines of different origins – Roman law (favor contractus, fraus creditorum) and common law (obiter dictum, per incuriam, ratio decidendi). In addition, the author calls the application of Latin language clichés in court decisions one of the distinct trends in Ukrainian jurisprudence, which can contribute to the accuracy of the presentation, brevity and comprehensibility of the text, as well as the standardisation of the language of law. The author summarises that the application of Latin legal terms by national courts is an absolutely logical process, which indicates the further integration of national jurisprudence into global processes and trends occurring in world jurisprudence.

The Highest Suggestion in the Land: Obiter Dicta and the Modern Supreme Court of Canada

The Highest Suggestion in the Land: Obiter Dicta and the Modern Supreme Court of Canada

Teaching stare decisis to first-year law students in higher education: a pedagogical blind alley?

ABSTRACT The doctrine of stare decisis is often explained in first-year law studies as synonymous with the doctrine of precedent and dichotomised into ratio decidendi and obiter dicta. This explanation of stare decisis is frequently supplemented by an exercise where the novice law student is provided with a case and directed to identify the ratio decidendi of the case, and to appreciate the distinction between ratio and obiter dicta in it, the latter being persuasive only. It is argued that this pedagogy is limited and unrealistic because stare decisis is a dynamic process whereby, applying the precepts of formal legal logic, legal principle evolves. This paper propounds that the fundamental precepts of formal legal logic should be harnessed as a dedicated pedagogy to teach students how principle evolves. The extant legal studies curriculum can readily be modified to accommodate these suggestions. Consistent with the proposition that stare decisis is ultimately a process, whether a statement in a case has the character of ratio decidendi or obiter dictum is itself determined as the outcome of that process.

AN ANALYSIS OF THE LEGAL IMPLICATIONS OF MALAKI V. PEOPLE OF THE PHILIPPINES ON POLYGYNY UNDER THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES

This article, using case analysis, examines the legal implications of polygyny under the Code of Muslim Personal Laws of the Philippines of the case of Francis D. Malaki and Jacqueline Mae Salanatin-Malaki v. People of the Philippines, G.R. No. 221075, November 15, 2021, which not only affirmed the settled doctrine - that the non-Muslim male party to a subsisting civil marriage who converts to Islam and subsequently marries another woman in accordance with the Code of Muslim Personal Laws of the Philippines commits the crime of bigamy - but also suggests a novel proposition that a Muslim husband who contracts a subsequent marriage without the consent of the wife or permission of the Shari’ah court in case of wife’s refusal to consent is also bigamous; therefore, the subsequent marriage is void from the beginning under the Family Code of the Philippines and penalised as a crime under the Revised Penal Code of the Philippines. After analysing the case, this article concludes that the subsequent marriage of a Muslim husband who has subsisting Muslim marriage should not constitute the crime of bigamy, as there is no legal framework in the Qur’an or Sunnah which requires the consent of the wife for the Muslim husband to contract a subsequent marriage. It further concludes that this novel doctrine should be treated as an obiter dictum to avoid its practical effect of criminalising what the Qur’an and Sunnah have made legal and permissible. Nonetheless, existing legal provisions against abuse of the privilege to contract subsequent marriage may be enhanced.

‘A Series of Unfortunate Events’ Opinion 1/20 and the Fate of the ECT Modernisation Process

In Opinion 1/ 20, for the first time, the cjeu declared a request for an opinion under Article 218(11) tfeu inadmissible due to its ‘premature nature’. The request had been made by Belgium and concerned the compatibility with EU law of Article 26 of the draft modernised Energy Charter Treaty, insofar as it would potentially allow the application of the dispute settlement mechanism to intra- EU disputes. A close examination of Opinion 1/ 20 reveals shortcomings in the attempts to exclude the intra- EU application of Article 26 ect and spillover effects on the ect’s modernisation process. The cjeu’s stance in Opinion 1/ 20, both unprecedented and questionable, is also important for the understanding of the Komstroy judgment, where the cjeu ultimately responded via obiter dictum to the same question presented in the request giving rise to Opinion 1/ 20.

Might contain traces of Lotus: The limits of exclusive flag state jurisdiction in the Norstar and the Enrica Lexie cases

AbstractThe article scrutinizes some of the surprising commonalities in the reasonings of two recent decisions by two separate judicial forums: the ITLOS’s judgment in the M/V Norstar case and the award of an ad hoc arbitral tribunal in the Enrica Lexie case. One key connection between the two decisions is their heavy reliance on the Lotus judgment of the PCIJ. Another similarity between the two disputes is that both of them revolve around the concept of exclusive flag state jurisdiction under UNCLOS Article 92(1) and adjacent questions of jurisdiction on the high seas. The article is going to subject both decisions to criticism and argue that some of the more problematic positions adopted by the tribunals in both cases amount to no more than obiter dicta – thus establishing an additional parallel with Lotus, which also received heavy criticism for its controversial obiter dictum. The two tribunals’ new-found interest in Lotus also provides an opportunity to discuss the utility and legal weight of Lotus as a precedent in the face of a century of developments in treaty law and judicial practice. In this sense, this article builds on and attempts to continue the recent trend in scholarship advocating for a renewed appreciation of the Lotus case against the backdrop of decades of criticism against it. Accordingly, the article aims to facilitate a better understanding of all three disputes, the principles they applied, and the dynamics of international adjudication and international law in general.

The Idea of Structuring National Legislation Based on The Ratio of Decidendi & Obiter Dictum Constitutional Court Decision

MK decission which are "rejecting" and "unacceptable", often contain a constructive “ratio decidendi/obiter dictum” to the formation of the UU, but has not been effectively acted upon in the Prolegnas. This study analyzes: (1) the urgency of national legislation arrangements based on the ratio decidendi/obiter dictum; (2) the formulation of national legislation arrangements based on the ratio decidendi/obiter dictum. This normative research concludes: (1) UU must be formed based on the constitution, but the constitutional messages/guidelines in the MK’s legal considerations-that impactful on the substance of the UU are not followed up. (2) revise Article 18 of the Law No.12 of 2011 as ammanded through the Law No.13 of 2022 on the Establishment of Law and Regulation; give priority weight-to the law affected by the MK decision and include in the Prolegnas priority; the substance of the MK decision must be followed up in the drafting; and institute constitutional dialogue.

The Dobbs Decision: Can It Be Justified by Public Reason?

John Rawls has held up as a model of public reason the U.S. Supreme Court. I argue that the Dobbs Court is justifiably criticized forfailing to respect public reason. First, the entire opinion is governed by an originalist ideological logic almost entirely incongruent with public reason in a liberal, pluralistic, democratic society. Second, Alito's emphasis on "ordered liberty" seems completely at odds with the "disordered liberty" regarding abortion already evident among the states. Third, describing the embryo/fetus from conception until birth as an "unborn human being" begs the question of the legal status of the embryo/fetus, as if an obiter dictum settled the matter. Fourth, Alito accuses the Roe court of failing to exercise judicial restraint, although Alito argued to overturn Roe in its entirety. In brief, the Dobbs opinion is an illiberal, disingenuous, ideological swamp that swallows up public reason and the reproductive rights of women.

On Place and Time: Obiter Dictum to the Article “Time Is Out of Joint…”

You cannot compare the incomparable – the real and the ideal. Contemplating about Europe the author speaks not about the realities but about the goals and ideals while describing the real state of affairs in the case of Russia.

Judicial precedent as a formal source of law: theoretical issues

The article provides a dogmatic analysis of the category judicial precedent as one of the types of formal source of law. The meaning and main types of legal precedent are determined. The construction of the judicial precedent is considered through the prism of its development in English law (common law and law of equity), the substantive features of the stare decisis principle are analyzed as a fundamental basis for the mandatory application of the judicial precedent in practice. An universal definition of a judicial precedent based on the analysis of its essential features is proposed. The author examines the categories ratio decidendi and obiter dictum within the framework of the judicial precedent and analyzes the features of their identification. The article provides a logical relationship between a court decision, judicial practice and judicial precedent, considers the main types of judicial precedent (binding, persuasive, rejected), their substantive features and regulatory significance. A comparison between precedent de jure2 and precedent de facto is made, the value of the interpretation precedent in relation to the construction of the legal position of the highest court is established. The conclusion about the formation of the Russian doctrine of judicial precedent is made both at the level of the general theory of law and in the branches of Russian law.

Hello Platform Governance; But Never Ending Corporate Governance

Revolutionary and beneficial as it may be, the ever-increasing platform innovation effectuates regulatory issues that constitute a focal concern of the literature on platform governance. This article discusses, for the first time, the instrumental role of corporate governance in underpinning platform governance. Specifically, a stakeholder perspective provides a catalyst for the chemical combination of platform governance and corporate governance. While the stakeholder theory is not without criticism, the characteristics of online platforms lend extra support to the theory in the platform context. The article identifies several major mechanisms for channelling platform governance through corporate governance, i.e., board representation in an information capacity; independent directors; and stakeholder committees. In contrast, an economic analysis suggests that board representation in a voting capacity is not appropriate for the purpose of platform governance. As an ‘obiter dictum’, this article also challenges a position that corporate governance, which arose from traditional industrial capitalism, may impede platform innovation, which falls within the paradigm of the modern economy. It is demonstrated that corporate governance even in this traditional, shareholder-oriented formation provides an institutional framework that is conducive to entrepreneurship and innovation. Therefore, the new era of the platform economy highlights, rather than negates, the significance of corporate governance. Platform governance, online platform, corporate governance, stakeholder theory, shareholder primacy

“THIS IS MY KIDNEY, I CAN DO WHAT I WANT WITH IT” – PROPERTY RIGHTS AND OWNERSHIP OF HUMAN ORGANS

If I am not a slave, nobody else owns me and I therefore must own myself. This is but philosophical speculation and not the law. According to the legal view, not only does no one own me or my body parts, but neither do I. Legal conceptions of “property” donot extend to self-ownership. A vacuum in law concerning the ownership of body parts exists and the only responses to questions concerning this type of ownership remain philosophical and obiter dicta in reported cases. This article explores property rights in human bodies and body parts in order to establish the position in law of excised human organs removed for the use in transplantation. It is necessary to highlight the historical progression in determining property rights in human body parts, but it should be borne in mind that the majority of laws and court decisions took place in an era when organ transplants were still in an experimental phase. For the sake of brevity foreign legislation and court judgments in only two common law countries will be scrutinised and compared to the current position in South Africa. The reasons why ownership in human organs are important will also be indicated.

O EMPREGO DA CONVENÇÃO AMERICANA DE DIREITOS HUMANOS NA JURISPRUDÊNCIA DO TRIBUNAL DE JUSTIÇA DO RIO GRANDE DO NORTE

The present work seeks to investigate whether the Court of Justice of Rio Grande do Norte has been applying the American Convention on Human Rights. Thus, it is intended to verify the role that this treaty plays in the conducting votes of the judgments handed down by the TJRN bodies: is it applied to substantiate them, or does it work only as a lateral foundation? For this purpose, the relationship between international and national legal orders will be analyzed in the Brazilian theory and reality, and then an empirical study will be developed on the American Convention on Human Rights application, classifying its use in ratio decidendi or obiter dictum. Quantitative and qualitative analyzes were used, using previously established criteria, on judgments obtained from the insertion of research terms in the search mechanisms for jurisprudence on the official page of the Court of Justice of Rio Grande do Norte.

The Nostalgic Imagination: History in English Criticism

The Nostalgic Imagination: History in English Criticism

O favor divortii e os seus limites no Regulamento Roma III: comentário ao acórdão do Tribunal de Justiça da União Europeia de 16 de julho de 2020, je contra KF, C-249/19, EU:C:2020:570

In the JE v KF judgment, the European Court of Justice answers a question regarding the interpretation of article 10 of the Rome III Regulation. This annotation examines the solution and an obiter dictum given by the European Court of Justice.

When the Supreme Court's Obiter Dictum Will Be Binding on All Other Courts

While “working from home” during this unprecedented “Corona Virus Leave,” I stumbled ona discovery (and thought to share)from the leading judgment of My Lord, Uchechukwu Onyemenam, JCAin the election petition appeal between David Uchiv and Pius Sabo reported as (2005) LPELR –40360 (CA) where his lordship ruled on exception to the obiter dictum rule of judicial precedent.

A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan by David Gardner Chardavoyne with Hugh W. Brenneman Jr.

Reviewed by: A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan by David Gardner Chardavoyne with Hugh W. Brenneman Jr. Paul Moreno David Gardner Chardavoyne with Hugh W. Brenneman Jr. A Lincoln Legacy: The History of the U.S. District Court for the Western District of Michigan. Detroit: Wayne State University Press, 2020. Pp. 372. Photographs. Hardback: $44.99. With this fine volume of judicial history, David Chardavoyne (whom I've worked with for the Michigan Supreme Court Historical Society) has helped abate the envy that those of us in the Western District of Michigan have for the Eastern District. Chardavoyne wrote a fine history of the Eastern District in 2012 and that district has its own historical journal. A Lincoln Legacy is a comprehensive and encyclopedic account of the origins and development of this Grand Rapids-based federal court. It contains biographical information about all its judges, for example, which contain historical context that provides a fine background for the entire book. It also describes, with excellent photographs, the various buildings that have housed Western District courts over the years. This will be of interest not just to anyone who has worked in the legal world of the Wolverine State but also to anyone interested in its general history. But A Lincoln Legacy is much more than an encyclopedia. Readers will enjoy its stories most of all. Given the rise of American and global "juristocracy"—the ever-greater power of courts in our world—every citizen should know something about how courts and judges operate, and Chardavoyne tells many interesting tales. American courts have grown with the country. The decision to divide the state of Michigan into two districts (this is the "Lincoln legacy") is a story in itself. The fact that the Court's first case was U.S. v. One Piece of Ingrain Carpeting and Thirteen Yards of Gray Cloth tells us something about what federal courts do, and about the relative youth of the state in the 1860s. Baseball fans will enjoy Chardavoyne's account of the 1914 Federal League antitrust suit against catcher William Killefer, who had "jumped" from the Philadelphia Phillies to the new Federal League Chi-Feds and then jumped back when the Phillies made a counteroffer. Judge Clarence William Sessions is said to have upheld the notorious "reserve clause" that bound baseball players to their team owners in near-involuntary servitude. The reverse is closer to the truth. Sessions held against the Chi-Feds only because they did not meet the "clean hands" requirement in equity suits. In fact, he said in an obiter dictum that the clause would be unenforceable as an "executory contract … a contract to make a contract." (93) But it [End Page 143] would be over a half-century before the de facto enforcement of the reserve clause would end. Chardavoyne tells many fascinating stories about the enforcement of national prohibition in Michigan in the 1920s. The Eighteenth Amendment placed a tremendous burden on the federal courts, especially in Michigan, whose proximity to Canada made it a highway for rum-runners. It also met with serious resistance all over the country. Iron City's State Attorney Martin McDonough told the Scalucci brothers—restauranteurs and vintners whom the feds were prosecuting—that if the Feds returned they were free to "open fire on them." The T-Men in turn sought to arrest the Scaluccis for "rebellion." Authorities in Washington were able to arrange a compromise and avoid another civil war. Another valuable vignette concerns Judge Fred Morton Raymond's creative adaptation of the common law to prevent the guilty from escaping justice in a case involving the search of infamous bank-robber John Dillinger's automobile. The home front in World War II is nicely illustrated in the Office of Price Administration's enforcement of price-fixing and rationing. Post-Warren Court judicial activism at the district-court level is seen in liberal stalwart Noel Porter Fox, whose clerk "likened him to a modern-day chancellor in a court of equity, doing what was 'right' instead of what some might characterize as technically legal." (138) Many other features of and stores...

Normative propositions of the International Tribunal for the Law of the Sea

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

Equity and certainty in contract law

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.