Finding the ratio: Goodhart, Wambaugh and Lord Halsbury

A judgment binds. But a judgment is a document of many pages, and not every sentence in it binds. Which sentences do?

The literal meaning of ratio decidendi is the reason for deciding. Four definitions are given:

1. The principle or rule of law on which a court's decision is founded.
2. The rule of law on which a later court thinks that a previous court founded its decision.
3. A general rule without which the case must have been decided otherwise.
4. And the observation that the phrase is ambiguous: it may mean either the rule the deciding judge intended to lay down and apply to the facts, or the rule which a later court concedes him to have had the power to lay down.

Two steps are involved in ascertaining it: first determine the facts of the case as seen by the judge; then discover which of those facts he treated as material.

Every decision contains three ingredients:

1. Findings of material fact, both direct and inferential. An inferential finding is the inference the judge draws from the directly perceptible facts — negligence, for example, inferred from the speed of a vehicle, the length of the skid marks and the state of the road.
2. Statements of the principles of law applicable to the legal problems disclosed by the facts.
3. A judgment based on the combined effect of the first two.

For the parties, the third is the material element, because it determines their rights and liabilities. For the doctrine of precedent, the second is the vital element, and it is this that is termed the ratio. The ratio may therefore be defined as the statement of law applied to the legal problems raised by the facts, upon which the decision is based.

Not every statement of law in a judgment is binding — only those based upon the facts and upon which the decision is based. Any other statement of law is superfluous and is described as obiter dictum, which means by the way.

There are two types:

1. A statement of law based upon facts that either were not found to be material or were not found to exist at all.
2. A statement of law based on the facts as found which nevertheless does not form the basis of the decision — a statement made in support of a dissenting judgment is the obvious example.

Obiter dicta lack binding authority, but it should not be concluded that they are of little or no weight: they may have a strong persuasive influence.

| Case | What it settles | |---|---| | Krishna Kumar v Union of India | The ratio is ascertained by analysing the facts and by a process of reasoning with a major premise consisting of a pre-existing rule of law, statutory or judge-made, and a minor premise consisting of the material facts of the case under consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. | | State of Orissa v Sudhanshu Shekhar Mishra | A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio, and not every observation found in it, nor what logically follows from the various observations made in it. | | Dalveer Singh v State of Punjab | Even where the direct facts of an earlier case appear identical to those before the court, the judge is not bound to draw the same inference as was drawn in the earlier case. | | Fazlunbi v K. Khader Vali | Precedents of the Supreme Court are not to be left on the shelves, nor brushed aside on the footing that they are authorities only on their actual facts. Such devices are impermissible for a High Court — not merely because of the jurisprudence of precedent but because of the imperatives of Article 141. | | A.R. Antulay v R.S. Nayak | Defines per incuriam: decisions given in ignorance or forgetfulness of an inconsistent statutory provision or of a binding authority, so that some part of the decision, or some step in the reasoning on which it is based, is demonstrably wrong. A decision given per incuriam may be ignored. | | Arnit Das v State of Bihar | Defines the rule of sub silentio: a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be law declared with binding effect under Article 141. That which has escaped in the judgment is not ratio decidendi in the technical sense. |

Note also that where there is inconsistency between benches of the same court, the decision of the larger bench should be followed — Union of India v K.S. Subramanian; and that between authorities of matching weight, weight should be given on the basis of rational and logical reasoning rather than the fortuitous circumstances of time and death — Indo-Swiss Time Ltd v Umroo.

Goodhart's test

Goodhart did not accept the classical definitions. His criticisms were that every case must contain an ascertainable principle of law even though no opinion is delivered by the judge, and that the statement of law may be too wide or too narrow. He went so far as to say that the phrase ratio decidendi is misleading, because the reason the judge gives for his decision is not binding and may not correctly represent the principle; his whole point was that every case must contain a binding principle, but that the binding principle is not necessarily to be found in the judge's statement of the law.

His test has two limbs. The principle of the case is found by determining:

• the facts treated by the judge as material, and
• his decision based on them.

His guidelines:

1. The ratio must not be sought in the reasons on which the judge based his decision.
2. The reasons given are nevertheless of peculiar importance, because they may guide us in determining which facts he considered material and which immaterial.
3. A decision for which no reasons are given does not necessarily lack a ratio; and the reasons offered may be inadequate or incorrect while the ruling is endorsed in later cases — a bad reason may often make good law.
4. Therefore the ratio is whatever facts the judge determined to be material, plus his decision based on those facts. It is by his choice of the material facts that the judge creates law.

Two consequences follow: hypothetical instances are unlikely to be accorded the weight of judicial precedents, because by definition they are obiter; and the conception links the doctrine of precedent to the principle that like cases be treated alike, since a court bound by precedent would reach the same conclusion unless there is a further fact it is prepared to treat as material, or unless a fact material in the previous case is absent.

Wambaugh's inversion test

It rests on the assumption that the ratio is a general rule without which the case must have been decided otherwise. The test is put as a dialogue between Wambaugh and his student:

1. Frame carefully the supposed proposition of law.
2. Insert in the proposition a word reversing its meaning.
3. Inquire whether, if the court had conceived this new proposition to be good and had had it in mind, the decision could have been the same.
4. If the answer is affirmative, then however excellent the original proposition may be, the case is not a precedent for it.
5. If the answer is negative, the case is a precedent for the original proposition, and possibly for others.

Rupert Cross's criticism: the exhortation to frame the proposition carefully, and the restriction of the test to cases turning on only one point, rob it of most of its value as a means of determining what the ratio was, although it has its uses as a means of ascertaining what was not the ratio.

What survives: the test is an all but infallible means of ascertaining what the ratio is not, and it accords with the generally accepted view that a ruling can be treated as ratio only if it supports the ultimate order of the court.

Lord Halsbury's test

That part alone of a decision by a court of law is binding upon courts of coordinate jurisdiction and inferior courts which consists of the enunciation of the reason or principle upon which the question before the court has really been determined. That underlying principle, forming the only authoritative element of a precedent, is what is termed the ratio decidendi.

In Quinn v Leathem Lord Halsbury added two general observations: that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions found in it is not intended as an exposition of the whole law but is governed and qualified by the particular facts; and that a case is only an authority for what it actually decides. He entirely denied that a case can be quoted for a proposition that may seem to follow logically from it, since such reasoning assumes that law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

Thus for Lord Halsbury too, it is by the choice of material facts that the court creates law — the same conclusion Goodhart reached by a different route, which is the point to make in the closing paragraph of an answer.

• The definition question — the four definitions, the two steps, the three ingredients of a decision, and the definition of the ratio as the statement of law applied to the problems raised by the facts.
• The tests question — Goodhart, Wambaugh with Cross's criticism, Halsbury with Quinn v Leathem, and the convergence of Goodhart and Halsbury on the choice of material facts.
• The Indian overlay — per incuriam from A.R. Antulay, sub silentio from Arnit Das, and the authority of Article 141 from Fazlunbi. These three carry the answer from an English textbook question to an Indian one.