A Comparative Perspective on Obiter dicta: from persuasive authority to seriously considered dicta

Abstract

Una prospettiva comparata sugli obiter dicta: dall'autorità persuasiva ai detti seriamente considerati – This paper addresses the use of “obiter dicta” in Australia and Italy, at first, two exemplars of common law and civil law traditions. However, both countries have variations on their tradition – Italy with the maxim and recent judicial discussion of the value of obiter dicta in certain cases, and Australia with a direction from the High Court of Australia to lower courts to follow its “seriously considered” obiter dicta and to intermediate appellate courts to follow each other unless they are “plainly wrong”. Both these moves show the complex nature of the legal process and the intricacies of persuasiveness across the jurisdictions.

Keywords: Obiter dicta; Ratio decidendi; Stare decisis; Maxim; Legal comparison