vustudents
09-06-2011, 11:53 PM
Q. What do you understand by Ratio Decidendi? Explain the factors that destroy or diminish its application. (1995)
1. Introduction :
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum.
2. Definition Of Precedent:
I. According To Prof. Osborn:
“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”
II. According To Prof. Keeton:
“A judicial precedent is a judicial decision to which authority has in some measure been attached.”
3. Ratio Decidendi:
Ratio decidendi is a reason of which the judge decide the case. It describes the principal of the case.
I. Definition:
(i) According to Prof. Salmond:
“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”
(ii) According to Repert cross:
“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
II. Effect Of Ratio Decidendi:
According to Salmond, the concrete decision is binding between the parties to it but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it.
III. Must Relevant To Case:
In so formulating the rule judges must continue themselves to the requirements of the requirements of the case in hand.
Prof. Salmond stated:
“The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in these scope.”
IV. Rules Determining Ratio Decidendi:
In Section 29 of Salmond on jurisprudence, rules determining ratio decidendi have been indicated. The material observations contained in the section 27 are as below.
(i) Case decides Generally:
What a case decides generally and as all the would is the ratio decidendi or rule of law for which it is authority.
(ii) As between the Parties:
What it decides between the parties includes for more than this. The law provides that once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by it and these matters are become “res judicata” between them and cannot be the subject of further dispute.
(iii) As against persons not parties to suit:
As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or preposition may be described roughly as the rule which the Court regarded as government the case.
V. Methods Of Determining Ratio Decidendi:
Different jurists have advanced different tests ascertaining the ratio decidendi.
(i) Reversal Test:
The Reversal test of Professor Wambaugh suggested that the ratio decidendi can be discovered by reversing the preposition of law put forward by the Court and inquiring whether the decision would be the same notwithstanding the reversal. If it is the same then the preposition of law is no part of the ratio. The ratio is a general rule without which the case would have been decided otherwise.
Criticism:
Lord Simonds has pointed out defects in the Suggestion. In cases where a judge has given two alternative grounds for a decision. The test of Prof. Wambaugh would compel us to deny the case any ratio decidendi because whichever preposition was revealed the decision will stand on the other.
(ii) Goodhart’ s Theory:
According to Prof. Goodhart ratio decidendi is not the reason for the decision, for the reason may be bad and yet the case may come to be an authority. According to him the ratio decidendi is the conclusion reached by the judges on the basis of the material facts and on the exclusion of the immaterial once. He strictly falls in line with the views of the American professor. Oliphant who suggested that we should confine ourselves to only the decision and disregard what the judge has said in giving his decision Goodhart’ s theory implies that it is the deciding judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.
Criticism:
It overlooks two points:
(i) It is within the function of judges in subsequent cases to say what they choose to regard as the material facts of the earlier case.
(ii) Two persons may agree as to a collection of individual facts and yet from different impressions of the group of them as a unit.
4. Obiter Dictum:
All that is said by the Court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand are called obiter dictum.
I. Definition Of Obiter Dicta:
(i) Prof. Patterson Stated:
Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.”
(ii) Dr. Goodhart; s stated:
“A conclusion based on a fact the existence of which has not been determined by the Court.”
II. Force of Persuasive Precedents:
The obiter dicta have the force of persuasive precedents only. In the course of his judgment a judge may let fall various observation not precisely relevant to the issue before him. The judges are not bound to follow them. They can take advantage of them but they are not bound to follow them.
III. Advantages Of Obiter Dictum:’
Following are the advantages of obiter dictum:
(i) Obiter dictum help in the growth of law.
(ii) These sometimes help the cause of the reform of law.
(iii) The judges are expected to know the law and their observations are bound to carry weight with the government.
(iv) The defects in the legal system can be pointed out in the obiter dictum.
(v) They serve to suggest solutions to problems not yet decided by the Courts.
IV. Kinds Of Dicta:
According to Lord Sterndale Dicta are of different kinds and varying degrees of Weight.
(i) Causal expressions of opinion:
Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case and is not really present to the judge’ s mind. Such dicta though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration.
(ii) Deliberate expressions of opinion:
Deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open to other judges to give decisions contrary to such dicta but much greater weight attaches to them than to the former class.
5. Conclusion:
To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law.
1. Introduction :
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum.
2. Definition Of Precedent:
I. According To Prof. Osborn:
“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”
II. According To Prof. Keeton:
“A judicial precedent is a judicial decision to which authority has in some measure been attached.”
3. Ratio Decidendi:
Ratio decidendi is a reason of which the judge decide the case. It describes the principal of the case.
I. Definition:
(i) According to Prof. Salmond:
“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”
(ii) According to Repert cross:
“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
II. Effect Of Ratio Decidendi:
According to Salmond, the concrete decision is binding between the parties to it but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it.
III. Must Relevant To Case:
In so formulating the rule judges must continue themselves to the requirements of the requirements of the case in hand.
Prof. Salmond stated:
“The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in these scope.”
IV. Rules Determining Ratio Decidendi:
In Section 29 of Salmond on jurisprudence, rules determining ratio decidendi have been indicated. The material observations contained in the section 27 are as below.
(i) Case decides Generally:
What a case decides generally and as all the would is the ratio decidendi or rule of law for which it is authority.
(ii) As between the Parties:
What it decides between the parties includes for more than this. The law provides that once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by it and these matters are become “res judicata” between them and cannot be the subject of further dispute.
(iii) As against persons not parties to suit:
As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or preposition may be described roughly as the rule which the Court regarded as government the case.
V. Methods Of Determining Ratio Decidendi:
Different jurists have advanced different tests ascertaining the ratio decidendi.
(i) Reversal Test:
The Reversal test of Professor Wambaugh suggested that the ratio decidendi can be discovered by reversing the preposition of law put forward by the Court and inquiring whether the decision would be the same notwithstanding the reversal. If it is the same then the preposition of law is no part of the ratio. The ratio is a general rule without which the case would have been decided otherwise.
Criticism:
Lord Simonds has pointed out defects in the Suggestion. In cases where a judge has given two alternative grounds for a decision. The test of Prof. Wambaugh would compel us to deny the case any ratio decidendi because whichever preposition was revealed the decision will stand on the other.
(ii) Goodhart’ s Theory:
According to Prof. Goodhart ratio decidendi is not the reason for the decision, for the reason may be bad and yet the case may come to be an authority. According to him the ratio decidendi is the conclusion reached by the judges on the basis of the material facts and on the exclusion of the immaterial once. He strictly falls in line with the views of the American professor. Oliphant who suggested that we should confine ourselves to only the decision and disregard what the judge has said in giving his decision Goodhart’ s theory implies that it is the deciding judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.
Criticism:
It overlooks two points:
(i) It is within the function of judges in subsequent cases to say what they choose to regard as the material facts of the earlier case.
(ii) Two persons may agree as to a collection of individual facts and yet from different impressions of the group of them as a unit.
4. Obiter Dictum:
All that is said by the Court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand are called obiter dictum.
I. Definition Of Obiter Dicta:
(i) Prof. Patterson Stated:
Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.”
(ii) Dr. Goodhart; s stated:
“A conclusion based on a fact the existence of which has not been determined by the Court.”
II. Force of Persuasive Precedents:
The obiter dicta have the force of persuasive precedents only. In the course of his judgment a judge may let fall various observation not precisely relevant to the issue before him. The judges are not bound to follow them. They can take advantage of them but they are not bound to follow them.
III. Advantages Of Obiter Dictum:’
Following are the advantages of obiter dictum:
(i) Obiter dictum help in the growth of law.
(ii) These sometimes help the cause of the reform of law.
(iii) The judges are expected to know the law and their observations are bound to carry weight with the government.
(iv) The defects in the legal system can be pointed out in the obiter dictum.
(v) They serve to suggest solutions to problems not yet decided by the Courts.
IV. Kinds Of Dicta:
According to Lord Sterndale Dicta are of different kinds and varying degrees of Weight.
(i) Causal expressions of opinion:
Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case and is not really present to the judge’ s mind. Such dicta though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration.
(ii) Deliberate expressions of opinion:
Deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open to other judges to give decisions contrary to such dicta but much greater weight attaches to them than to the former class.
5. Conclusion:
To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law.