Obiter Dicta – Difference between Legislation, Precedents and custom

Obiter Dicta  – Difference between Legislation, Precedents, and custom

OBITER DICTA – Obiter Dicta is a pronouncement of Law which are not a part of ” Ratio Decidendi” and which are not a reason for deciding any case judgment.

  1. Obiter Dicta are not authoritative or binding on subordinate courts.
  2. It may be defined as a casual expression by the court which carries no way and which has not that much importance as Ratio Decidendi. 
  3. Whatever is said by the court by way of a statement of law that lay down a rule but which is unnecessary for the purpose in hand is called Obiter Dicta.
  4. The Court may seek help from them but is not bound to follow them.

  According to “GOOD HART” Obiter Dicta is a conclusion based on a fact the existence of which has not been determined by the court. 

Difference Between Legislation and Precedents 

  1. Legislation has its source in the law-making, and it came by the will of the state, Whereas Precedents have their source in Judicial decision or Judgement or Decree.
  2. Legislation is imposed by the legislature but Precedents are Created by themself.
  3. Legislation denotes a formal declaration of law by the legislature, whereas presidents are recognized as new principles of law which are followed by the court in the administration of Justice.
  4. Legislation is enacted before the actual arise of any case, but precedents come into existence only after the cases have arisen and are taken for decision before the court.
  5. Legislation is expressed in compressive form but the scope of presidents is either expressed or implied.
  6. Legislation is declared or published before it is brought into force, but Precedents came into force at once, as soon it is declared. 
  7. Legislation is not difficult for the public to know or trace any law made by the legislature, but Precedents are not like that, they are not easily accessible by people and sometimes also by lawyers were not able to understand them properly.

Difference Between Legislation and custom

  1. The existence of legislation is essential that is ” De Jure”  whereas customary law existence has “de-facto”. 
  2. The legislation goes out of theoretical principles but customary law goes out of practice and long and existence.
  3. Legislation as a source is historical much later as compared with customs which is the oldest form of Law.
  4. Legislation is an essential characteristic of modern society whereas customary law has developed thoughts in primitive society. 
  5. Legislation In Complete, Precise and in writing form  Right In Form And Easily Accessible Where Is Customer Law Mostly Unwritten And difficult to trace. 
  6. Legislation results out of deliberation but custom goes with the society in a natural course. 
  7. Legislation Express the relationship between man and the state but customary law is based on the relationship between Man and Intersey. 

Author: Sonu Anand,
Faculty of Law, The ICFAI University, Jharkhand/ 3nd Year Law Student

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