Ratio decendidi PDF

Preview

Summary

Finding the Ratio Decidendi...

Description

Ratio decendidi: 1. Look at your Subject Outline, Reading List or Case List Take a peek at the topic headings, cases and journal articles listed above and below the case you’re about to read. Doing this before you start reading the case will help to provide some context for your search for the ratio and help you to avoid getting sidetracked by all that obiter. 2. Read the Headnote Chief Justice Gleeson once said that, “There are some cases where people who write headnotes deserve a medal”, and he was right. When you start reading the judgment, begin with the headnote – this will highlight the key issues or legal principles considered by the case. 3. Read the Whole Case The ratio normally appears towards the end of a judgment, but unfortunately you can’t just skip to the end. It’s a bit like watching a mystery show; it’s harder to find the answer when you jump in part way through, so you’ll have to read the case in full. In its most basic format, a judgment starts by outlining the facts of the case, before considering the legal arguments presented to the court, and then making the decision. The ratio won’t be in the summary of the facts at the beginning but you do need to read the facts as the court’s decision on how the law applies may rest on some of the parties’ circumstances. The court’s analysis of the legal arguments is also essential reading, although the ratio will probably be located at the end of the legal analysis, just before the court makes its finding that the defendant is guilty, or the defendant was negligent, etc. 4. Focus on Key Facts and Arguments To help you find the ratio, when you’re reading the judgment, focus your attention on the precedents or legal principles the court discusses at length, and the facts of the case that the judges emphasise. 5. The ‘Aha!’ Moment The ratio is essentially the reason why the court reached a particular decision. The outcome of the case therefore depends on the ratio decidendi, so if you read something that makes you think you know which party is going to win (or lose) you may be in ratio territory. Going back to the crime show example, it’s a bit like watching a murder mystery and having a hunch as to whodunnit. 6. Dealing with Multiple Judgments If you’ve got a High Court decision where some of the judges have written a separate opinion, you know that the ratio won’t be lurking in the dissenting judgment, instead look for the ratio in the majority decision. But if each judge wrote a separate decision, your hunt for the ratio probably just got even trickier. If many of the judges agreed or were close enough in their view of the key legal principle(s), you may be able to distill a ratio, or at least a sort-of ratio if there were some small differences in opinion. If the majority agrees on the outcome of the case but took completely different views of the law to get there, you might not be able to find a ratio. 7. Don’t panic if you can’t find the ratio It’s okay if you can’t find the ratio; lots of law students, and even lawyers and lecturers can have difficulty with this, particularly in older cases where the ratio is sometimes hard to distinguish from the obiter. If you find yourself in this situation, look the case up in your textbook, casebook or lecture slides – there’s a very good chance that the ratio decidendi will be explained, if not actually quoted, in the case summary. Even if you think you’ve found the ratio, this can be a good way to confirm that your approach is working. OR

First, I start with a summary checklist of what constitutes as the ratio decidendi and the obiter dictum. Secondly, I provide an explanation on the distinction between descriptive ratio vs prescriptive ratio. This is fundamental for understanding the difference between identifying the ratio vs applying the ratio to the matter at hand. Then, I explain that the ratio is applied by way of analogy and I give some suggestions on how to escape the binding ratio. Thirdly, I provide an in-depth description on what constitutes a) the ratio decidendi, b) obiter dictum, and c) binding obiter dictum from the High Court. Lastly, I provide some suggestions on how to rapidly find the ratio if you’re in desperate need. Before we proceed, there is a distinction that I want to emphasise: the distinction between law and empiricism. What the law is, does not necessarily imply how lawyers and judges actually think and behave. For example, some theories claim that judges have an intuitive hunch for the solution of a case, then reason backwards, that is, they find authorities and believable reasons for why their hunch is correct.[2] How judges think and behave is an empirical question and cannot be answered by legal rules. Therefore, the following article is a legal analysis of what the ratio and dictum is, not an empirical description of what really occurs in courts and in the minds of lawyers and judges. 1.

Must be a necessary step to the conclusion.

2.

Must be directly related to the issue.

3.

Must come from disputes of law, not disputes of fact.

4.

Must be argued in Court.

5.

The facts of the precedent case shape the level of generality.

6.

The later courts decide the level of generality.

7.

When a precedent has multiple reasons, all reasons are binding.

8. a.

The ratio can come in multiple forms: Common law rules;

b.

Interpretation of statute;

c. 9. a. b. c. d. 10. 11. 12. 13.

Interpretation of the common law rules. Where there are multiple judges: The majority of judges must agree to be binding. If the judges have different reasons, find essential areas of agreement. If the majority of judges agree on the order but do not agree on the reasons, cannot discard the precedent. Cannot construct a ratio by the aggregation of various elements of separate reasons. A precedent can be binding without a ratio. When the ratio cannot be determined, later courts may not be bound. Not all cases must have a ratio. Unstated assumptions are not the ratio. THE RULES OF OBITER DICTA Generally, obiter dictum is not binding; Except, the High Court’s ‘seriously considered dicta’ is binding. Obiter dictum is persuasive However, obiter dicta can have different degrees of weight.

1. a. 2. a.

The Descriptive-Prescriptive Distinction

Before we get into the actual law, we will first examine the distinction between Descriptive ratio decidendi and Prescriptive ratio decidendi. The essence of the distinction is that the descriptive ratio is the ratio from the original case and the prescriptive ratio is how the ratio may be applied to a future case. I give credit to Professor Julius Stone for expounding this distinction in his article, The Ratio of the Ratio Decidendi.[3] DESCRIPTIVE RATIO DECIDENDI Ratio decidendi is Latin for ‘the reason for deciding.’ This ‘reason’ is not 1) the facts of the case, 2) the law that the case applies, or 3), the orders of the case. Instead, it’s the ‘necessary step’ that the judge needed to resolve the case. For example, consider the following hypothetical judgment from the book Legal Technique by Christopher Enright. Imagine that there’s a Dog Act 1947 and s 6 states: ‘A person may bring an action against the owner of a dog if the dog enters land owned by that person.’ Now, imagine the following extract is the judgment: Elisabeth owns a meadow. Elisabeth sues Kit Walker because Kit allowed his pet wolf Devil to walk onto her meadow and molest her pet rabbit, much to the distress of both Elisabeth and the rabbit. Elisabeth now brings proceedings under s 6 of the Dog Act 1947. Three things are clear regarding a breach of s6. First, Elisabeth's meadow is land. Second, Elisabeth is owner of the land so Elisabeth is entitled to bring the action in her own right. We add that this would be the case even if Elisabeth had not discharged her mortgage to the Rural Bank some years ago. It would not have been necessary in that case for the action to be brought by both Elisabeth and the Rural Bank as co-plaintiffs. Third, Devil has entered Elisabeth's land. What is not immediately clear is whether Devil, a wolf, is a dog within the meaning of s 6 of the Dog Act 1947. From a zoological perspective a wolf is a member of the dog family. On the surface this may seem conclusive on the question of whether a wolf is a dog. However a number of the provisions of the Dog Act 1947 referring to dogs clearly mean only dogs of a type which are ordinarily domesticated. Given this we feel that we have to interpret s 6 in the same way and so find that in s 6 ”dog" means only a dog of a type which is ordinarily domesticated. In this case the offending animal is a wolf. While the particular wolf was domesticated, as a species wolves are not usually domesticated. For this reason Devil is not a dog within the meaning of s6 of the Dog Act so the plaintiff fails in her claim. The ratio decidendi from this fictional judgment was the interpretation of the word “dog” in s 6 of the Dog Act. Reason, it was the only part of the judgment that needed an extra step. The other parts of the judgment were simply the facts, the existing law, and the application of the law to the facts. Therefore, the ratio decidendi from this fictional judgment was: the term “dog” under s 6 of The Dog Act 1947 “means only a dog of a type which is ordinarily domesticated” and did not extend to wolves. To illustrate this point further, there was a phrase in this judgment that sounded like the ratio but was in fact, obiter dictum: We add that this would be the case even if Elisabeth had not discharged her mortgage to the Rural Bank some years ago. It would not have been necessary in that case for the action to be brought by both Elisabeth and the Rural Bank as co-plaintiffs. Obiter dicta are statements within a judgment that do not constitute as the ratio and is subsequently non-binding on future cases. The statement sounded authoritative and definitive and had the feel of being ratio, however, it was obiter because Elizabeth did not discharge ‘her mortgage to the Rural Bank,’ and therefore, the statement was not necessary to the decision. The phrase ‘her mortgage to the Rural Bank’ had nothing to do with the matter. Now that we’ve examined the descriptive ratio, we need to examine the prescriptive ratio, that is, how the precedent ratio may apply to future cases. PRESCRIPTIVE RATIO DECIDENDI There is a logical dichotomy between the descriptive ratio decidendi and the prescriptive ratio decidendi.[4] We may be able to identify the ratio in the precedent case but it is not possible to directly apply it to a future case. Reason being, the precedent case and the future case will never be precisely identical. There will always be distinctions between the two. What is the probability that identical facts in the past will occur in the future? Very slim. Thus, there needs to be a level of generality. LEVEL OF GENERALITY I define the ‘level of generality’ as the transformation of a single judgment to the future judgment. Inevitably, a transformation needs to occur as a precedent may be utterly useless if we wait for the exact facts of the case to exist again. Thus, the level of generality is the determination of how similar or different the facts need to be from the old case to the new case. To briefly illustrate, the book Laying Down the Law gives us a good example: In Donoghue v Stevenson [1932] AC 562 … the House of Lords held that the manufacturer of a bottle of ginger beer could be liable to the consumer if, before the bottle was sealed, the ginger beer was contaminated by the remains of a snail and the consumer became ill as a result of drinking it. At the lowest level of abstraction the

decision would be binding on later courts on in cases with precisely the same facts. On that basis, it would not be binding in a later case where the drink was Coca-Cola. But, in terms of the legal rule, why should there be a distinction between ginger beer and Coca-Cola? Logic suggests that the principle should apply, at the lease, to all food and drink which is packaged so as to prevent inspection.[5] Thus, if we stopped at the level of describing the ratio, Donoghue v Stevenson would only be applicable to cases that involve: 1) Women, 2) from Scotland, 3) in the year of 1932, 4) in which harm can only come from snails, 5) in ginger beer bottles, 6) placed negligently, 7) by Mr. Stevenson, 8) etc., etc. To push this further, Professor Julius Stone’s article, The Ratio of the Ratio Decidendi,[6] listed a spectrum of ways that the level of generality could be formulated from the case: (a) Fact as to the Agent of Harm. Dead snails, or any snails, or any noxious physical foreign body, or any noxious foreign element, physical or not, or any noxious element. (b) Fact as to Vehicle of Harm. An opaque bottle of ginger beer, or an opaque bottle of beverage, or any bottle of beverage, or any container of commodities for human consumption, or any containers of any chattels for human use, or any chattel whatsoever, or any thing (including land or buildings). (c) Fact as to Defendant’s Identity. A manufacturer of goods nationally distributed through dispersed retailers, or any manufacturer, or any person working on the object for reward, or any person working on the object, or anyone dealing with the object. (d) Fact as to Potential Danger from Vehicle of Harm. Object likely to become dangerous by negligence, or whether or not so. (e) Fact as to Injury to Plaintiff. Physical personal injury, or nervous or physical personal injury, or any injury. (f) Fact as to Plaintiff’s Identity. A Scots widow, or a Scots-woman or a woman, or any adult, or any human being, or any legal person. (g) Fact as to Plaintiff’s Relation to Vehicle of Harm. Donee of purchaser, from retailer who bought directly from the defendant, or the purchaser from such retailer, or the purchaser from anyone, or any person related to such purchaser or other person, or any person into whose hands the object rightfully comes, or any person into whose hands it comes at all. (h) Fact as to Discoverability of Agent of Harm. The noxious element being not discoverable by inspection of any intermediate party, or not so discoverable without destroying the saleability of the commodity, or not so discoverable by any such party who had a duty to inspect, or not so discoverable by any such party who could reasonably be expected by the defendant to inspect, or not discoverable by any such party who could reasonably be expected by the court or a jury to inspect. (j) Fact as to Time of Litigation. The facts complained of were litigated in 1982, or any time before 1932, or after 1932, or at any time. And finally, Professor HK Lucke writes: …if the strongest possible case for application is the case involving the closest possible factual similarity, and if growing dissimilarity weakens the case for application, then a precedent would never be completely binding, for some difference between the precedential facts and the facts of later cases can always be detected.[7] Statutory Interpretation Reading statutes An increasingly large proportion of the law now exists in statutory form. You will do classes on statutory interpretation. For now, this is a basic account of what you should do when you encounter a statute. 1. 2. 3. 4. 5. 6. 7. 8. 9.

Look at the name of the statute. Identify the Short Title of the Statute. Often one of the first sections in the Act will say ‘this Act may be cited as ‘Short Title’. Identify the Long Title of the statute – this often begins ‘An Act for the purpose of [x] ....and for related purposes’ Make sure you know what the jurisdiction is (eg Commonwealth or NSW) and date of the statute. Look at the table of contents. This will give you an overview of the material covered by the statute. Look at the definition section of the Act. Some Acts have more than one definition section, or there may be particular definitions for within a certain part of an Act. Take note of these. When looking at any section of an Act pay attention to the connecting words as well as the substantive words – words like ‘until’, ‘but’, ‘and’ ‘or’ and so on are extremely important for the logical interpretation of the words in the act. Read the words of the act looking for their ordinary natural meaning first. In many cases you will not have to go further than this. For ordinary words in the Act an English dictionary is useful.

10. Note that many words have specific meanings in Acts which they may not have in English because the Act Interpretation Act of the jurisdiction has said so. These words include ‘shall’, ‘may’, and ‘minister’ etc. Such acts also define some ordinary words such as ‘day’, ‘month’ etc . It is worth having a look at the relevant Acts Interpretation Act, eg NSW Interpretation Act 1987 11. Generally when a problem arises in relation to an Act there will be a selection of sections from that Act which are particularly significant for that problem. You need to read the Act with the problem in mind, rather than trying to read the Act like a story. 12. The art of statutory interpretation is a major skill you will learn during your law degree. The basic principles are to read the act in its ordinary meaning and to determine what parliament intended by the words. Since the passing of the Acts Interpretation Acts in Australia it has been possible to look at material extrinsic to the Act itself, such as the Second Reading Speech of the Minister introducing the legislation into parliament, to help determine parliament’s intention. Statutory interpretation is the process of determining whether a statute applies to a particular circumstances and if yes, what are the consequences. The court interprets statutes using the following approaches: 1.

The literal approach - interpret according to plain, literal meaning of the words. If there is an ambiguity or an absurdity with this approach, use:

2.

The golden rule approach - still according to the plain meaning, but with a slight modification to avoid the absurdity. If a sensible result is still not reached, use:

3.

The purposive approach - interpret according to what interpretation would best achieve the purpose of the act. If there are still ambiguities/absurdities then:

4.

Explore extrinsic materials.

Interpretation Common law rules of interpretation [6]

The common law rules of interpretation are as follows:  

Literal rule - interpret the statute according to the literal meaning of the words. Higgins J in The Engineers Case: "The fundamental rule of interpretation... is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole...what does the language mean... in its ordinary and natural sense, it is our duty to obey that meaning."[7]



Golden rule - the court would modify the meaning under the literal rule if the result would be absurd, repugnant or inconsistent with the rest of the legislation.[8]



Mischief rule (purposive approach) - interpret according to the intended purpose of the act, ie examine what ‘mischief’ Parliament was attempting to prevent by passing the statute. This would clarify their intent.[9]

There are also other, more specific rules which help analsing the grammatical structure of sentences: 

noscitur a sociis – words take the meaning of the context in which they appear.



ejusdem generis - ‘of the same kind’, where there is a general phrase and specific words of the same kind, we read the general phrase in the light of the specific list.



expressio unius est exclusion alterius – if something is expressly referred to, that will exclude other matters.



Special and general provisions – if an Act provides for something in general terms, and a later Act makes special provision for the same thing...