Definition
A Latin term meaning "to doubt." In legal reporting, *dubitare* and its inflected forms appear as technical annotations in case reports to signal judicial reservation or uncertainty — not dissent, but something short of it.
Three forms appear in legal sources, each carrying a distinct shade of meaning:
1. DUBITARE — the infinitive form, "to doubt." Rarely appears alone; the inflected forms below do the practical work.
2. DUBITANTE — "doubting." Appended to a judge's name in a reported case to indicate that the judge questions the soundness of the decision or the legal proposition it rests on, without going so far as to formally dissent. A judge noted *dubitante* participates in the result but registers intellectual reservation.
3. DUBITANTUR — "it is doubted." An impersonal annotation indicating that a proposition stated as settled law is, in the reporter's or court's view, open to serious question. This form speaks to the standing of a rule, not to an individual judge's position.
Common Confusion
DUBITANTE vs. DISSENTE (or DISSENTIENTE): These are not the same. A judge recorded as *dissentiente* rejects the outcome. A judge recorded as *dubitante* does not oppose the result but doubts the reasoning or the legal rule underlying it. The distinction matters when tracing the development of a doctrine — a *dubitante* notation signals instability in a principle without the weight of a formal dissent. Researchers who treat the two as equivalent will misread the degree of judicial consensus actually present in a case.
DUBITANTUR vs. QUÆRE: Both signal doubt about a proposition of law, but from different angles. *Quære* (or *quaere*) is an editorial instruction meaning "consider this question" — it invites inquiry. *Dubitantur* states that the proposition is itself doubted, i.e., the uncertainty is already identified, not merely flagged for future examination. The practical difference is subtle but real: *quaere* opens a question; *dubitantur* marks one as unresolved.
Why It Matters in Research
These terms appear almost exclusively in older English reports — Year Books, the nominative reporters, and early American reprints of English cases. Researchers working in pre-nineteenth-century common law materials need to recognize them on sight, because a misread annotation can transform a contested proposition into settled authority.
The critical research trap: *dubitante* does not mean *concurrente* (concurring) and it does not mean *dissentiente* (dissenting). In older reports, the distinction between these annotations was sometimes the only record of judicial division on a point. If a rule traces back to a case where one or more judges are listed *dubitante*, the rule's authority is softer than it appears from the holding alone.
Because these reports predate modern pagination and citation conventions, the annotations often traveled imperfectly through digest and abridgment literature. A proposition might appear confidently stated in a digest that silently dropped the *dubitantur* qualification from the original report. Tracing doctrine to primary sources — rather than relying on digests — is essential when these terms are in play.
Modern usage is negligible. Researchers will not encounter *dubitante* in contemporary American opinions. Where it appears in secondary literature today, it is almost always in historical or comparative law contexts.
Historical Dictionary Support
Anderson's entry is compact but accurate. It correctly distinguishes the three functional forms and correctly cross-references *quaere*, which is the natural companion term for research purposes. The entry does not address the distinction from *dissentiente*, which is the more common point of confusion in practice.
Historical dictionaries generally treat these terms briefly, which reflects their actual usage: they are reporter's annotations rather than substantive legal concepts, and their function is mechanical — marking a margin of doubt — rather than doctrinal. No significant divergence among historical sources has been identified on the core meanings. The terms are stable in definition; what varies is how carefully older reports applied them.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Judicial Reporting Conventions; Latin Terms in Common Law Sources.