учебный год 2023 / Ratio

still (in Cardozo's famous phrases) confined from molar to molecular

Nov. 1959 THE RATIO OF THE RATIO DECIDENDI 617

It is precisely in the above sense that the rule of stare decisis has played and will continue to play a great role in common law judicial achievement. Precedents present, for the instant case, a rapid review of social contexts comparable to the present, and of results thought to be apt in those contexts by other minds after careful inquiry. They also point to the available paths of reasoning by which one result or another can be, or has been reached. Moreover,

it remains consistent with the present view that even appellate courts do in fact follow precedents, do " draw " rationes decidendi from cases and decide subsequent cases " in accordance with " these. They even do so, often enough, by characterising some " facts " (at some levels of generality of statement) in the prior case as the " material " or " important " ones, and others as not such. What has been here urged is that both in logic and in law other alternative rationes based on alternative characterisations were also usually

available for choice, though in the particular cases not e.hosen. The point of interest then shifts to the elements of technique, skill, experience and plain wisdom, with which such choices are made when they do present themselves. Here, it is believed, is the heart of the secret by which Lord Wright's paradox is eased, by which "'the rule of stare decisis" stands together with "a perpetual

process of change."

Cardozo, Holmes, Wright and others have described aspects of the judicial choice-making as seen and felt by the judge, and a great but scattered and controversial literature has attempted such descrip- tion from the outside. The elements of judgment involved are unlikely ever to receive adequate description, even in an age in

which " decision-msking " in general has become a fashionable focus of social inquiry. The framework of judicial choices within the matrix of the " rule of stare decisis," in any case, sets judicial decision-making somewhat apart. While it is no part of the

present purpose to attempt any general description, one or two more limited observations may here be added.

Perhaps the two commonest ways of referring to the development of the common law have been in terms of (1) a process of trial and errorby which the limits of a rule are progressively defined; or (2) the search among the authorities for the " closest" or "the

right" analogy. In both these ways of speaking, when we think them through, certain essential insights are well embedded. If we think of the plotting of the limits of a rule by trial and error, there is involved at each point the later court's assessment of the

relevance of the former problem to the instant one, and the wisdom of incurring the logical and social consequences of the former decision in connection with its present duty of choice. And which alternative is chosen from the versions of the material facts (or of the ratio

of the precedent case) made or left available by the authoritative materials, will reflect the assessments thus made. If we think in terms of the use of analogy then, again, there are involved

618 THE MODERN LAW REVIEW VOL. 22

judgments as to the " similarity " of the problem presented by the precedent case to that in the instant one, and as to the version of the ratio of the precedent case by use of which (in terms both of logical and social consequences) that similar problem will receive a " similar " solution in the instant case. In either way of speaking, it is impossible to confine the ingredients of judgment either to the logical relations between legal propositions, whether actual or potential, and whether framed in terms of "material facts " or of enunciated principles, or to the social consequences arising from one choice or compared to another, or to judicial views of "public policy," " ethics," " justice," " expediency " or other standard of what is deemed desirable. And by the same token, we also

cannot exclude a limine the operation of any of these groups of considerations as an ingredient actually and properly to be entertained.

In short a "rule" or "principle" as it emerges from a precedent case is subject in its further elaboration to continual

review, in the light of analogies and differences, not merely in the logical relations between legal concepts and propositions; not merely in the relations between fact situations, and the problems springing from these; but also in the light of the import of these analogies and differences for what is thought by the later court to yield a

tolerably acceptable result in terms of " policy," " ethics," "justice," " expediency " or whatever other norm of desirability the law may be thought to subserve. No ineluctable logic, but a composite of the logical relations seen between legal propositions, of observation of facts and consequences, and of value-judgments about the acceptability of these consequences, is what finally comes to bear upon the alternatives with which " the rule of stare decisis "

confronts the courts, and especially appellate courts. And this, it may be supposed, is why finally we cannot assess the product of their work in terms of any less complex quality than that of wisdom.

Among recent statements which express something of the nuances and delicacies of balance involved, is that of Dean Erwin N. Griswold:

<". . There is in nearly every case an area of choice. How a judge marks out and determines that area largely determines the type of judge he is. In this area, most matters are ones of degree, ones of more or less.

If a judge keeps this area too small, he is likely to be a poor judge, for he will be too hidebound by precedent, too much tied to the past, too unaware of the relevance of variations

in the situation before him.

On the other hand, if a judge allows this area to be too broad, he is not likely to be a good judge. He may run some risk of deciding according to his own personal choice rather than according to law as he is given light to understand the

law; he may give too little weight to precedent, and make the law unsettled.

Most judges successfully avoid these extremes. Even then, there is an area of choice. That is what judges are for. Within

this area, it may not be possible to give a purely logical demonstration that one result is better than another. A judge has to call on all the resources of his experience and wisdom in coming to a conclusion. Some judges hew rather closely to the line;

some are more free-wheeling." "3

When, therefore, Lord Wright says that "judging

will," and that " notwithstanding all the apparatus of authority, the judge has nearly always some degree of choice," this is but the negative side of the answer to the question how the "perpetual process of change " in the common law can be reconciled with " the rule of stare decisis." The rest of the answer lies in the wisdom of

the exercise of the duty of judicial choice down through the genera- tions. It flows from recognition that our law constantly produces and reproduces new areas for choice-making not only by frequent resort to what I have called " categories of illusory reference" of substantive law, but (above all) by maintaining at the centre of "the rule of stare decisis " a notion of the ratio decidendi of a case

which is almost a perfect medium for the creation of multiple and

competing references. While, thus leaving room for the play of contemporary insight and wisdom, however, the notion also directs the attention of the later court to the contexts of earlier cases, and

to the views of logical consistency, experience and values displayed by judges in the earlier contexts. It thus tends to ensure that what official experience there is relevant to the instant situation is taken into account.

If we are to recognise in this wider sense the truth of Holmes' view that " behind the logical form lies a judgment as to the relative worth and importance of competing . . . grounds, often an inarticulate and unconscious judgment," the question may properly be raised how far judgment is likely to become wiser by dint of bringing its grounds to judicial consciousness and articllation. That is a

large and hazardous question on which perhaps the passage of years may lead this writer to qualify such confidence as he seemed to

express in 1946. Yet the answer to that question cannot affect the duty of all of us, especially in free societies, to cherish the

processes by which we are held together; and the duty to understand is not the least important corollary of the duty to cherish. If we must continue to think of stare decisis as sanctifying still any

particular "principles of the common law," then let us also see the deep relevance of Ehrlich's truth that " apparently stable

37Erwin N. Griswold,"Earl Warren and the SupremeCourt," The Christian Science Monitor, December 23, 1958. While the context of the quotation concernsthe SupremeCourtof the United States, Dean Griswoldhas informed me that it represents accuratelyhis view of the role of choice throughout judicial activity.