THE RATIO DECIDENDI OF A CASE
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb02164.x |
| Date | 01 March 1959 |
| Published date | 01 March 1959 |
THE
MODERN
LAW REVIEW
Volume
22
March
1959
No.
2
THE RATIO DECIDENDI
OF
A
CASE
PROFESSOR
MONTROSE
and
Mr.
Simpson have now
on
four occasions
expressed views concerning the
ratio decidendi
of
a
case.’
I
would
have hesitated to intervene in this gladiatorial combat
if
it
had
not been
for
the fact that both of them referred at considerable
length to my article “Determining the
Ratio Decidendi
of
a
Case.”
It
is not my purpose to discuss in the present article the
points on which they seem to disagree because
I
am not certain that
I
have always understood their arguments.
I
am concerned with
a
narrower and more personal matter. Both of the learned writers
are in agreement that the conclusions reached in my article are
unsatisfactory. Professor Montrose does
so
on the ground that
they conflict with the
‘‘
classical
”
theory which he accepts as being
correct, while Mr. Simpson is of the opinion that my theory is sub-
stantially the same as the “classical” one which he regards as
open to criticism.
The learned writers are not in accord concerning either the
existence
or
the nature of tbe
‘‘
classical
”
theory, but they are in
happy agreement concerning the content of my doctrine relating
to the binding precedent. Unfortunately, from my standpoint, they
50th state my theory in a form which
I
find
it
impossible to recog-
nise, as it omits what
I
regard as the essential point
of
my thesis.
For
some reason, which
I
find
it
difficult
to
understand, both the
learned writers, instead
of
referring to my article directly, are con-
tent to quote
a
single sentence, taken out of its context, from
Dr.
Glanville Williams’ valuable book
Learning the Law.
Thus in his
first article Professor Montrose says that
“
Glanville Williams
accurately summarises Goodhart’s thesis in the following sentence
:
1
J.
L.
Montrose,
‘‘
Ratio
qecidendi
and
the
House
of Lords
,’,’
(1957) 20
M.L.R.
124;
A.
W.
B.
Simpspp,
(1957) 20
M.L.R.
413;
J.
L.
Montrose,,‘
The
Ratio
Decidendi
of
a
Case,’,’
(1957) 20
M.L.R.
687;
-4.
W.
B.
Simpson,
The
Ratio
Decidendi
of
a
Case
(1958) 21
M.L.R.
166.
The
Ratio
Decidendi
of
a
Case
2
Essays
in Jurisprudence and the Common
Law,
pp.
1-26 (1931).
3
p.
125.
VOL.
22
117
8
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