The binding element in precedents

1. The decision or judgment of a judge may fall into two parts: the ratio decidendi and obiter dictum . When a judge delivers judgment in a case he outlines the facts which he finds have been proved on evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi). More precisely, the ratio decidendi of a case is the principle of law on which the decision is based. The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum (“something said by the way”).

2. The binding part (if any) of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases. The ratio is not the decision itself. Only the litigating parties are bound by the actual decision in a case whereas the ratio of a case states the law for all persons and may be binding in later cases.

3. The traditional view was that the ratio decidendi of a case was what it was perceived to be by the judge who decided the case. But the difficulty with this approach is that the judge may have expressed the principle too widely or too narrowly for it to be useful in a later case. Moreover, in appellate courts each judge may state the principle in different language and so it is not always easy to discover the ratio by a quotation from any one judgment.

4. The modern, generally accepted view is the ratio decidendi of a case is what it is determined to be by a court in a later case and what the judge in the original case considered it to be. This objective approach towards finding the ratio of a case makes it possible for a judge in a later case to relegate to the status of obiter dicta statements, which had hitherto been to be ratio. It also means that. Since the facts of two cases are unlikely to be identical, the judge in the later case usually ha the task of either restricting or enlarging the ratio of the earlier case. If he decides that the ratio does not apply to the facts before him he is restricting its scope. If he decides that the ratio does apply to the different factual situation he is enlarging its scope.

5. Discovering the ratio decidendi of a case is often difficult but it may involve the separation of the relevant and irrelevant parts of a judgment. The ratio will hardly ever be stated explicitly in the judgment but will be found buried among a mass of dicta. In some respects the old cases are easier to read because the reporter did not always trouble to report what he considered to be mere obiter dicta. The ratio may not be accurately encapsulated in the headnote to the law report. The reporter may have misinterpreted the decision and attempted to state the ratio too widely or too narrowly. The decision in a case and, therefore, the ratio decidendi must always depend on the particular facts of the individual case. To discover the ratio of a case all the facts found by the judge to be material must be considered. Whatever words are not necessary for the decision must be obiter. However, a judge may give two or more reasons for his decision in which event they are both all rationes decidendi and not mere obiter dicta.

(Ingham, The English Legal Process (Blackstone Press 1990), pp. 173-174,193)

Task 9. Make up the plans and form questions to the following text: