Ratio Decidendi and Obiter Dictum: A Curious Case

by Daniel Mitidiero

Overview

This book explores the concepts of ratio decidendi and obiter dictum from a historical-comparative perspective. It provides a comprehensive review of legal doctrine on precedent, delving into English and American Law so to illustrate its applicability to the Brazilian legal system. How we deal with precedents is its main topic.

Definitions within legal fields have always been subject to significant debate, with some recurring more often than others. Every now and then, a perspective arises which transforms the orthodoxy. As such is the case with the notion of precedent. Outlining its contours establishes a continuity between disparate and temporally distinct traditions. It requires theoretical-philosophical speculation, historical-comparative sense, and attention to the particularities of Brazilian Law.

This book includes in-depth discussions of the development of the various understandings of the ratio, outlines the notions of ratio decidendi and obiter dictum, and illustrates its application within legal practice. It suggests an understating of the ratio capable of dealing with identical, similar and distinct issues in the Brazilian legal system. Following an extensive debate on the characterisation of the ratio, it explores the notion of obiter dictum, its definition, abilities and effects.

The target audience of this book includes researchers, scholars and practitioners, especially those interested in the practice of precedent from a perspective that intertwines legal theory, legal history and comparative law.

Product Details

ISBN-13:	9783031931512
Publisher:	Springer Nature Switzerland
Publication date:	07/06/2025
Pages:	153
Product dimensions:	6.10(w) x 9.25(h) x (d)

About the Author

Daniel Mitidiero is an Associate Professor of Civil Procedure at the Federal University of Rio Grande do Sul (since 2011). He holds a PhD in Law from UFRGS (2007) and has been a Visiting Scholar at the University of Edinburgh, Scotland (2023) and the University of Pavia, Italy (2013).

He is a member of the Council of the International Association of Procedural Law (IAPL), the Instituto Iberoamericano de Derecho Procesal (IIDP), the Associazione Italiana fra gli Studiosi del Processo Civile (AISPC), the Asociación Argentina de Derecho Procesal (AADP), and serves on the Board of the Instituto Brasileiro de Direito Processual (IBDP).

Daniel is the author of numerous books and articles published internationally. Additionally, he is a practising lawyer in Brazil.

Table of Contents

1. Introduction.- Part I Ratio Decidendi – When is an issue Identical, Similar, or Distinct?.- 2. Ratio Decidendi.- 3. Among Us.- 4. On the Road.- Part II Obiter Dictum – When does a Decision not Decide?.- 5. By the Side of the Road.- 6. The Wind-Up Bird Chronicle.- 7. May the Force be with You.- 8. Final Thoughts.