Dictum

The Latin term dictum refers to a statement or observation, made by an authoritative source, which does not directly speak to the facts, or affect the outcome, of a legal case. An example of this may include the discussion of a legal principal for the purpose of illustrating, suggesting, or creating an analogy to explain a court’s decision. A dictum is a comment, or an aside, that is not binding on other courts. To explore this concept, consider the following dictum definition.

Definition of Dictum

Noun

1. A judge’s expression of an opinion on a point that is not a specific issue involved in deciding a case.
2. A collateral comment or opinion, made by a judge, concerning a legal matter other than the fact used in rendering judgement on a case.

Origin

1599    Latin dictum “thing said”

What is Dictum

The phrase “you can never go back” is a dictum, as is a pronouncement by the school principal that there will be no saggy jeans allowed in school. This Latin term, as used in American English, refers to a formal rule, statement, or pronouncement that expresses a truth, or universally acknowledged principle. The Latin word translates to “something said,” though its modern use more specifically means “something that is officially said.”

Historically, in English common law, when a judge made an insignificant remark, or an aside, it was treated lightly, or more commonly ignored altogether. In the modern U.S. legal system, dicta (plural of “dictum”), are technically remarks that might explain, but do not have direct bearing on, a legal decision made by the court. Dicta frequently make their way into written court decisions and opinions, where they shed light on the judge’s thought process. Dicta are not part of the court ruling that becomes binding on lower courts in future, similar cases.

Dictum vs. Holding

In recent decades, many courts have shifted toward treating dicta like binding law. This raises the question of the difference between a dictum and a holding. The most basic distinction between the two concepts is that courts are bound to follow the holding of a previous, higher court’s decision. They are not, however, bound by a court’s dicta.

A holding expresses the reasoning necessary to reach the decision. Some legal scholars consider a holding to be a prediction of what courts will do in the future. This is oftentimes self-fulfilling, as the court’s own ruling sets the actions of future courts by creating binding precedent.

Dicta are all of the statements made by the court, whether in the decision itself, or in a dissenting or supporting opinion, which to not bear directly on the decision. Determining which portions of a court’s decision are holdings, and which are dicta, can be trying at times. One simple technique is to look for what the court itself said is a holding.

For example:

In a case brought before the U.S. Supreme Court, regarding whether or not a state could require that people circulating petitions to voters actually be registered voters themselves, the Court offers this holding in its decision:

“Thus, the Court today holds that a State cannot require that those who circulate the petitions to get initiatives on the ballot be electors, and that a state is constitutionally required to instead allow those who make no effort to register to vote and convicted drug dealers to engage in this electoral activity.”

This holding has now become a binding precedent, which other courts faced with a similar case in the future must use in its rulings. Other giveaway holding phrases include “we hold that,” and “the rule is.”

Types of Dictum

Though most legal professionals refer to any statement made by a court which is beyond the issue ruled on by the court a dictum, dicta may be broken down into several subtypes. Dicta do not create binding precedent, but are often used for their persuasive effect. The types of dictum include:

• Dictum Proprium – a personal dictum that is expressed by a judge delivering an opinion, which is not essential to the decision rendered on the case.
• 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 – Latin for “something said in passing.” 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.

Related Legal Terms and Issues

• Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
• Holding – A court’s determination of, or decision on, a matter of law, based on the issue presented in a particular case.