The Ratio Of The Ratio Decidendi
| Date | 01 November 1959 |
| Author | Julius Stone |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00561.x |
| Published date | 01 November 1959 |
THE
MODERN
LAW
REVIEW
Volume
22
November
1959
No.
6
THE
RATIO
OF
THE
RATIO
DECIDENDI
I.
Stare Decisis
AND
THE
PROCESS
OF
CHANGE
POOR,
indeed, must
be
the common lawyer who has not paused
to
ask,
with Lord Wright, how the “perpetual process of change”
in the body of common law
‘‘
can
be
reconciled with the principle
of authority and the rule
of
stare decisis
?
)’
Beneath the dry and
niggling distinctions, the flat frustrating contradictions, behind the
bold dynamic precept suddenly emasculated or the mouldering
precedent revivified by
a
new constellation of facts, behind the
wavering alternations of judicial caution and judicial valour,
coyness and courage, the lawyer
of
imaginative intelligence must
be
conscious of the elements of
a
perennial mystery. He is challenged
to ask what magic at the heart
of
the system of
stare decisis
can
transform
a
symbol of immobility into
a
vehicle of change? And
the challenge confronts him in the dimension both of space and time.
In
the dimension of space the English common law continues to
spread, independently of the powers of political sovereignty, over
substantial parts of the globe, and, even amidst the uncertainties
of our age, its place
as
a
major legal heritage of
all
mankind
seems
assured.
In
the dimension of time this
corpus
juds
already
approaches its second millennium of traceable history
as
a
living
system of law.
It
remains
a
common assumption, among most of us, even today,
that the present common law is somehow
still
one with that common
law whose origins we trace back into the early centuries
of
the
modern world. We think of
it
as
a
single system
of
law, somehow
linked into unity throughout time. And
it
is perhaps in this
assumed link that we should look for the deepest seat of mystery.
Formerly, and sometimes even today, we have tended
to
take
for
granted that the link is in whole
or
in part that of logical derivation.
Certain fundamental principles were always there
:
for new problems
we have had to draw out what was already implied in these
fundamental principles.
To
decide the instant case, we have
to
make
a
specific application of these fundamental principles; and by
VOL.
22
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THE
MODERN
LAW
BEVIEW
VOL
22
the same token the rule now newly applied is deemed,
in
posse
if
not
in esse,
to be a rule of the same common law and coeval with
it.
We assume (though there may also be other reasons for this) that
judicially developed norms applied in a particular case have always
been the law. This rule, at the least, symbolises the common
assumption (spoken or tacit) that all present and future develop-
ments in common law principles are somehow already implicit in the
common law existing hitherto.
The intelligent citizen, and certainly the intelligent lawyer,
must at some stage formulate a position
on
some aspects of these
matters. How is
it
possible that, over large segments of human
relations, a single body of common law has maintained its position
as a means of sound ordering in a mid-twentieth-century world
of approaching automation, of ever more rapid movement, and
massing of urban populations, as
it
formerly did in the vastly
different conditions of ancient agricultural, pastoral and petty
industrial society? By what magic could the common law have
developed out its
own
inner resources from its former to its present
scope
and functions? What can be the link which allows us
to
think of these vastly differing modes of adjustment as but phases
of
a single system
of
law
?
What can be the secret of the remarkable
capacity for growth and adaptation which has allowed a body
of
principles and its assumed implications to perform at such a
tolerable level of efficiency both in primitive, petty feudal, rural and
in great modern urban civilisations
?
These may seem rather general
and even melodramatic questions to ask in a prologue to a technical
inquiry about the
ratio decidendi
of a case. But they are essential
to be asked
if
we are
to
understand the full import of the technical
questions, against the vast exciting framework of which they are
a
part.
The doctrine of
stare decisis,
in addition to whatever
it
may
enjoin upon the intellect, certainly evokes an atmosphere and a
mood to abide by ancient decisions, to follow the old ways, and
conform
to
existing precedents.
It
suggests a condition of rest,
even of stasis, a system of law whose content is more or less settled,
the past content by past decisions, and the present and future content
because they too are controlled by those past decisions.
It
implies
the stability
of
the legal system along the stream
of
time, that
despite all the vast social, economic and technological changes of
the last eight or nine hundred years, society remains nevertheless
in some meaningful sense under the governance of the same system of
law. For
with this same inner mystery of the common law there are probably
also entangled some subsidiary mysteries
of
"
the rule
of
law
"
as
this notion has arisen in the common law world, and offers itself
for adoption elsewhere.
As
a political concept
"
the rule of law
"
has, as at least one main strand, the minimisation if not the exclusion
Nor is the drama of these questions exhausted even then.
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