Indicators of obiter dicta. A pragma-dialectical analysis of textual clues for the reconstruction of legal argumentation

The question as to whether or not an argument isadditional may be decisive in the evaluation ofjudicial decisions. It is, however, often difficult todistinguish between arguments that are additional(obiter dicta) and arguments that are not (ratio decidendi). This paper will focus on twoproblems concerning this distinction: thecharacterization of obiter dicta and theiridentification. A pragma-dialectical approach toargumentation will be the framework in which theseproblems will be addressed. Its insights intodialogical aspects of argumentation will be used tocharacterize obiter dicta. And its assessment oflinguistic clues for the recognition of argumentationstructures will be used for the identification ofobiter dicta. Problems related to the identificationof obiter dicta will be illustrated through ananalysis of decisions in which the expressions anyway, for that matter and if onlybecause are considered as indicative of obiter dicta.