La ratio decidendi

The Yale Law Journal Company, Inc.

Determining the Ratio Decidendi of a Case Author(s): Arthur L. Goodhart Source: The Yale Law Journal, Vol. 40, No. 2 (Dec., 1930), pp. 161-183 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/790205 Accessed: 19/10/2009 10:07
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YALE

LAw

JOURNALVOL XL.

DECEMBER,

1930

No. 2

DETERMIINIG

THE RATIO A CASE
ARTHUR

DECIDENDI

OF

L. GOODHART*

IN discussing the nature of a precedent in English law Sir John Salmond says: "A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concretedecision 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 rule is stated as follows by Professor John Chipman Gray: "It must be observed that at the Common Law not every opinion expressed by a judge forms a Judicial Precedent. In order that an opinion may have the weight of a precedent, two things mustconcur: it must be, in the first place, an opinion given by a judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum." 2
* Fellow and Lecturer in Law, Corpus Christi College, Cambridge, England; editor of the LAW QUARTERLY REVIEW. 1 SALMOND,JURISPRUDENCE(7th ed. 1924) 201. 2GRAY, THE NATURE AND SOURCESOF THE LAW (2d ed. 1921) 261. Cf. 2 AUSTIN, JURISPRUDENCE(5th ed. 1885) 627: "It follows from what has

preceded, that law made judicially must be found in the general grounds (or must be found in the general reasons) of judicial decisions or resolutions of specific or particular cases: that is to say, in such grounds, or such reasons, as detached or abstracted from thespecific peculiarities of the decided or resolved cases. Since no two cases are precisely alike, the decision of a specific case may partly turn upon reasons which are suggested to the judge by its specific peculiarities or differences. And that part of the decision which turns on those differences (or that part of the decision which consists of those special reasons), cannot serve as a precedentfor subsequent decisions, and cannot serve as a rule or guide of conduct. The general reasons or principles of a judicial decision (as thus abstracted from any peculiarities of the case) are commonly styled, by writers on jurisprudence, the ratio decidendi." [161]

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YALE LAW JOURNAL

[Vol. 40

Both the learned authors, on reaching this point of safety, stop. Having explained to the...