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Difference Between Holding And Dictum

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What is holding and dictum?

A holding or ratio descendi is the opinion given by the court for a decision that binds the lower courts (vertical hierarchy) and the court itself (horizontal hierarchy) under all circumstances.  This binding that holds the courts is called Stare decisis.  On the other hand, a dicta or obiter dicta are those part of court’s opinion (opinion in passing), that are not binding the lower courts or later courts and hence, and gives the lower court an option to disregard the higher court’s opinion.

In the American legal system, dictum and holding are entitled to a very different weight.  A decision reached based on Stare decisis is considered precedentary and has to be obeyed, whereas a dicta doesn’t have to be obeyed, it just has to be given a respectful consideration.

Types of Dictum

Dicta can be of these types:

  • Dictum Proprium – a personal dictum that is expressed by a judge delivering an opinion.
  • Gratis Dictum – an assertion made by a person who has no obligation to do so, or discussion raised by the court of a point not mentioned in the record.
  • Judicial Dictum – an opinion offered by a court, on a question or point that is directly involved in the case, but which is not essential to the court’s decision.
  • Obiter Dictum – A comment made by the court while delivering its decision, but which is not necessary to the decision itself.
  • Simplex Dictum – a statement that is unproven, or dictatorial.

Holding vs Dicta- What is the debate?

 A dictum in theory is very clear that all the cases should be treated as individual. Research findings suggest that there is a dramatic difference between dicta- in-theory—where the lines separating dictum from holding is important, and dicta-in-practice, where the distinction between dicta an holding becomes blurred (David & Klein, 2013).  According to a study conducted by Klein and Devins, a lower court may identify a statement from a higher court as dictum but it does not mean that the lower court is unwilling to act as if the statement were a holding. In fact, 32% of the cases that were studied in this research are examples of unambiguously positive citations, in which the statement in question is cited in support of a particular proposition, and the citing court does not suggest that it is free to disregard the statement.

Problem- when dicta gets elevated to become a holding

There are plethoras of judicial decisions, which are controversial because of dicta taking place of holdings. For instance, in a 2009 case, the Court of Appeals of Oregon justified a decision this way:

“We base that conclusion on two factors…. Second, in Moore v. Motor Vehicles Division, the [Oregon] Supreme Court (in dictum) stated, “An administratively imposed penalty based on [a legally unauthorized] procedure would be invalid.” In light of the fore- going, we allow the petition for reconsideration and now hold that the suspension of petitioner’s driver’s license is reversed.”

The evidence suggests that the distinction between holding and dictum is at once central to the American legal system and largely irrelevant. Lawyers, judges, and academics refer to “dicta” all the time. From a practicing lawyer’s viewpoint, nothing can be achieved by asking a lower court to treat higher court language as nonbinding opinion. From the perspective of lawyers and law scholars, law in practice is, what lower courts make it. Whether a higher court might one day reject a statement as dictum makes little difference if at the moment, the statement is equal to binding precedent.

Why does confusion exist between holding and dicta

This confusion exists for three main reasons.

  1. 1.Catch 22- as long as some judges, some lawyers, or some academic scholars blur the distinction between the two concepts that lack of clarity will exist and spread.
  2. Lower courts and later courts appear to be following the higher court, and that court is more likely to issue dicta and higher courts seem to be less restrained by the holding/dicta distinction.
  3. The stress on words, phrases, and quotations, instead of focusing on the causal facts of each case and its issues, and holdings of judicial opinions, makes the lawyers and judges more prone to confuse holdings and dicta.

Way from here- Road to less confusion

Regardless of how one defines holding or dicta, it is clear that judges and lawyers and law students generally confuse the two. As is clear above, dictum is regularly elevated to holding. The underlying causes of the confusion, which are discussed above can and do serve as a commencing point for formulating proposals that may stop the repeated confusion between holding and dicta.

Increasing education regarding the distinction will help. That education could occur in law schools, in continuing legal education seminars for practicing lawyers, and at judicial training conferences. Within law schools, students should be warned about the dangers of relying on the words and phrases they find in judicial opinions, especially when taken out of context. Other measures must include reducing judicial caseloads which would make it easier for judges and their clerks to spend the time doing research which is necessary to distinguish between holding and dicta—both in the opinions they read and in those they write.


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