judging
Why don&#39;t Commonwealth judges always write out the headings &quot;Ratio Decidendi&quot; and &quot;Obiter Dictum&quot;, to definitively distinguish them?
<p>I ask solely about Anglo-American written judgments. Why don't judge's written judgments always comprise the headings &quot;Ratio Decidendi&quot; and &quot;Obiter Dictum&quot;, just like how the headings &quot;Material Facts&quot; and &quot;Issues&quot; are always used to separate the Facts v. Issues?</p>
<p>This view appertains to each judge deciding a case. So if a case comprises 5 justices, there can be a total of 5 &quot;Ratio Decidendi&quot; and 5 &quot;Obiter Dictum&quot; headings that appear.</p>
<p>Obviously &quot;Ratio Decidendi&quot; will never be empty. &quot;Obiter Dictum&quot; can be empty if a judge has no <em>obiter</em> to &quot;dictate&quot;, but always printing this heading will assist all readers to definitively distinguish what is ratio and obiter, and to forestall the following bafflements.</p>
<p><a href="https://rads.stackoverflow.com/amzn/click/com/0414051939" rel="nofollow noreferrer" rel="nofollow noreferrer"><em>Glanville Williams: Learning the Law</em> (2016 16 edn).</a> p 110.</p>
<blockquote>
<p>It is a mistake to suppose that every case has one and only one fixed and incontrovertible <em>ratio decidendi</em>. What exactly is the <em>ratio decidendi</em> of a case is often a matter for much argument. Also, the pick-lock art of distinguish depends upon a critical examination of all the facts of the case that might by any possibility be regarded as material.</p>
</blockquote>
<p><a href="https://rads.stackoverflow.com/amzn/click/com/019879990X" rel="nofollow noreferrer" rel="nofollow noreferrer">Holland, Webb. <em>Learning Legal Rules</em> (10 edn 2019).</a> pp 220-221.</p>
<blockquote>
<h2>7.8.2 Multiple and Inconclusive <em>Rationes</em></h2>
</blockquote>
<blockquote>
<p>It will not now come as a surprise that a case can be said to have different <em>rationes</em> in that
there may be different interpretations of what is the proposition of law for which the case
stands as authority. Equally, you need to be aware that: (i) even ‘crystal-clear’ judgments
occasionally contain more than one <em>ratio</em>; and (ii) that in some cases no one can find the <em>ratio</em>.</p>
</blockquote>
<blockquote>
<h3>Different formulations of a <em>ratio</em></h3>
</blockquote>
<blockquote>
<p>At section 7.3 we noted that a judge may reformulate the <em>ratio</em> by using different words
later in his judgment. Th at certainly adds confusion but in many ways it is part of a normal
thought process. Here, we have in mind a slightly different position—where a judge says:
‘I find for X for the following reasons . . . I would also say that there is another (unconnected)
reason for which I find for X.’ Which is the ratio? This occurred in the Court
of Appeal case of <em>Turner v London Transport Executive</em> [1977] ICR 952. The traditional
answer is that both statements are ratio . Later judges do not, however, follow a consistent
line when dealing with such cases; they ‘relegate’ one of the statements to mere obiter dictum: see Lord Denning’s comments on <em>Turner in Western Excavating v Sharp</em> [1978]
ICR 221; [1978] 1 All ER 713 (also Court of Appeal). [...]</p>
</blockquote>
<blockquote>
<h3>No clear ratio</h3>
</blockquote>
<blockquote>
<p>We also have in mind a number of confusing cases which the lawyer usually relates as
being ‘an authority for any proposition of law for which you care to use it’. This will arise
where the judges are agreed as to the decision (X won) but present their reasons in quite
different formulations. <em>Bell v Lever Bros</em> is one example.</p>
</blockquote>

<h2>Because they are only apparent with hindsight</h2>
<p>The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent.</p>
<p>First of all, the vast majority of cases follow precedent; they do not set it.</p>
<p>If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all.</p>
<p>Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an &quot;ah-ha&quot; moment and says &quot;Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta.&quot; Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong.</p>
<p>So a trial judge faced with this paradox has to resolve it; they don't get to say &quot;this is too hard&quot;. Basically they have 2 methods of doing so:</p>
<ol>
<li><p>The decide that one (or both) are obiter and make the decision based on the precedent that remains.</p>
</li>
<li><p>They decide that both are ratio and write a judgement that they know <strong>has</strong> to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says &quot;I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out.&quot;</p>
<p>Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with.</p>
</li>
</ol>

<p>One argument is that it would break the flow of the judgment which usually proceeds logically through each issue and then summarises them. But primarily it's a style guide issue for the learned judges, perhaps it's the case that nobody has considered doing that before?</p>
<p>Another reason might be a sort of &quot;vanity metric&quot; in that it <em>looks</em> complex therefore the judge <em>must</em> be of a high intellect to write such a judgment, whereas if you split the judgment up, it looks a bit less impressive.</p>
<p>Overall, there's no legal reason why the judgment couldn't include those headings - simply that the forces of inertia, the &quot;way things always have been done&quot;, potential &quot;vanity metrics&quot;, and such conspire against such a change</p>
