THE RATIO DECIDENDI OF A CASE
| Date | 01 March 1958 |
| Author | A. W. B. Simpson |
| Published date | 01 March 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00466.x |
THE
IZATIO
DECIDENDI
OF
A
CASE
IN
his most reccnt article’ Professor Montrose raises a number
of points which
I
shall attempt to answer as briefly as possible,
following the order in which he himself raises them.
He suggests that
I
have confused two senses in which the term
ratio decidendi
is used; these two usages both exist, and are,
therefore, both
“
correct.
”
Furthermore, they are separab1e.l
Thus, one could, according to Professor Montrose, accept one usage
and discard the other, and
so
say,
“I
think the
ratio decidendi
(meaning ,the rule of law explicitly stated by the judge as the
basis for his decision) of such and such a case is
X,
but
I
do
not think it is binding
’,
or, more baldly,
“I
do not think .&at
the
ratio decidendi
of
a case is binding.” This, indeed, is what
Professor Montrose himself is prepared to do.S Such
a
proposition
as the last seems somehow
odd
in the mouth of
a
lawyer, and
although a person making
it
could not, once he had defined
his
terms, be accused of obscurity, he might well be accused of a
very eccentric use of language. The reason for this is not difiicult
to
pinpoint---it is that the two usages discussed by Profesaor
Montrose are not separable in the way he assumes. Surely those
judges and writers (Professor Montrose excepted) who have meant
by the term
ratio
decidendi
“the rule
of
law propounded by the
judge as the basis of his decision
”
have adopted this usage because
they have thought that such
a
rule
is
the rule for which the case
ia
of binding authority. Those who have adopted the other usage
(“
the rule for which the case
is
of binding authority
’’)
have been,
to this extent, in agreement with those who adopt the former
usage-they have only disagreed
in
so
far as they think that the
rule is to be isolated in some other way. The two usages are
only separable in a way which is best explained by saying that
the first usage (rule of law stated by judge) includes and implies
the second (rule of law for which case is authority),
hut
that the
second usage gives no clue as
t.o
how the rule is to he isolated.
This point appears to me to be completely missed
in
Professor
Montrose’s writings on the subject.‘.
In
a short note
T
did
not,
raise it, and fail
to
see why
I
am criticiscd for not doing
so.
Had
I
(1957)
20
M.TJ.II.
5R7.
where he criticises my not,e
in
(1957)
20
M.L.R.
at.
p.
413.
f
(1957)
20
hf.1J.R.
nt
pp.
587-588.
The
two meanings
are
*I.
. .
the rnle
?f
law propounded by
the
judge
as
the ha&
of
his ultimate deciRion in the case
and
‘I.
.
.
the rule
of
law
for
which
n
case
is
of
binding twthority.”
8
(1957)
20
M.L.R.
at
p.
588.
I’
The
terminology
whereby
ratio
decidendi
signifien
the rule propounded by the judge8
Rhould
not
be
allowed
to
he used
to
beg tho
question whether mch
a
rule
is
CJf
hindiog ~11thorit.y.”
4
See
in
part,icular
2
WeRt
AuRt.1J.R.
nt,
pp.
3%
et
scq.
155
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