Obiter Dicta; is Latin for Said in Passing. In Common Law jurisdictions where many laws are judge-made, the judicial decisions often contain writing that are non-binding, yet provide clues as to the direction the  law is developing.

I was recently reading Code 2.0 by Lawrence Lessig, and was fascinated with one of the phrases he used. He argues that the judiciary ought to more frequently apply the law in defiance.  To be clear, the judiciary would not be usurping the power of the democratically elect.  Rather, the judiciary could say: “I’ve rendered this judgment in accordance with the state of the law, but I don’t agree with it”.

As technology and the Internet becomes evermore pervasive, we will increasingly discover that applying traditional laws in to a cyberspace framework will sometimes lead to absurd outcomes. Undoubtedly, Parliament will not always be equipped to legislate, and the subject matter can be too technical for the general masses to adopt a reasonable position. As a consequence, Lessig suggests, and I fervently agree, to a great extent that courts should still defer to the rule-makers, but in protest.