law n fact,precedent,logic n reasoning

8/8/2019 Law n Fact,Precedent,Logic n Reasoning

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Legal Methods Part IILegal Methods Part IILaw logic and reasoningLaw logic and reasoningLegal Methods Part IILegal Methods Part IILaw logic and reasoningLaw logic and reasoning

Law and FactLaw and Fact


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Thursday, October28, 2010 Dr. Tabrez Ahmad, KLS KIIT. 2

Law and fact It is commonly said that all

questions which arise forconsideration and determinationin a court of justice are of twokinds, being either questions of

law or questions of fact.


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The term question

of law A question which the court is bound to

answer in accordance with a rule of law-A

question which the law itself hasauthoritatively answered, to the exclusionof the right of the court to answer thequestion as it thinks fit in accordance with

what is considered to the truth andjustice of the matter.


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The term question

of law A question of law is a question as to

what the law is. Thus, an appeal on a

question of law means an appeal inwhich the question for argument anddetermination is what the true rule

of law is on a certain matter.


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The term question

of law Question of law in this sense arise, not out

of the existence of law, but out of its

uncertainty. If the whole law could bedefinitely ascertained, there would be noquestions of law in this sense; but allquestions to be answered in accordance

with that law would still be questions oflaw in the former sense.


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Thursday, October28, 2010 Dr.

Tabrez Ahmad, KLS KII

T. 6

The term question

of law When a question first arises in a

court of justice as to the meaning of

an ambiguous statutory provision thequestion is one of law in this secondsense ;it is a question as to what thelaw is. But it is not a question of law

in the first sense, but a question offact.


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T. 7

The term question

of law The business of the court is to determine

what, in its own judgment and in fact, isthe true meaning of the words used by thelegislature. But when this question hasonce been judicially determined, theauthoritative answer to it becomes ajudicial precedent which is law for all

other cases in which the same statutoryprovision comes in question.


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T. 8

The term question

of law The question as to the meaning of the enactment

has been transformed from one of fact into oneof law in the first sense; for it has in all futurecases to be answered in accordance with theauthoritative interpretation so judicially placedupon the enactment. The judicial interpretation ofa statute, therefore, represents a progressivetransformation of the various questions of fact asto the meaning of that statute into questions of

law (in the first sense ) to be answered inconformity with the body of interpretative case-law so developed.


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T. 9

The term question of

fact All other questions are question of

fact-using the term fact in its widest

possible sense to include everythingthat is not law. In this sense, everyquestion which has not been

predetermined and authoritativelyanswered by law is a question of fact.


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Legal Methods Part IILegal Methods Part IILaw logic and reasoningLaw logic and reasoningLegal Methods Part IILegal Methods Part IILaw logic and reasoningLaw logic and reasoning

Determining the Ratio DecidendiDetermining the Ratio Decidendi

of a caseof a case


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Law logic and reasoningLaw logic and reasoningLaw logic and reasoningLaw logic and reasoning

Sources of Law

Precedent and Statutes


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T. 12

How to find the Law3 Important

Sources of Law

Custom Precedent Legislation


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T. 13

Determining the law

Examining the

sources of the law

The language in

which they areexpressed

Nature of the

reasoning process

by which they

are applied to the facts


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T. 14

Two main sources of our law are:1. Case decisions-Precedent-Ratio Decidendi-

Obiter Dicta

2. Statutes- Interpretation of the statute

Judgments in cases are sources of law, for what acourt declares the law to be in one case has authority in the sense that it must be taken

into account by other judges when they aredetermining what law should apply to othersimilar fact situations.


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T. 15

Justinian issued a mandate: "Cases should bedecided on the basis of laws, not precedents."This still governs the Civil Law Countries, wherejudicial precedent is not considered a formalsource of law. Here codes are the chief source oflaw and Judges are to respect them. In contrastto this stands the Anglo-American legal tradition,where judicial precedents are regarded as formalsources of law. However, a precedent is

considered a less authoritative source of law thana statute.


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T. 16

The term commonly used for the doctrine ofprecedent is called stare decisis. This is anabbreviation of the Latin phrase, stare decisis et

non quieta movere (to stand by precedents andnot to disturb settled points). Generally speakingstare decisis means that a point of law oncesettled by a judicial decision is not to be departedfrom. In other words, an earlier case when

directly in point must be followed in a subsequentcase.


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hursday, October28, 2010 Dr.T

abrez Ahmad, KLS KIIT

. 17

The binding authority A court is bound by statute or by the decisions of superior

courts. The 'doctrine of the case' or ratio decidendi as it iscalled immortalises a case and it differs from ratio legis or

the reason behind the law. Now, ratio legis applies tostatutory law and the ratio for a statute may be social oreconomic. Thus the reason behind the Child MarriageRestraint Act, 19 of 1929 is social, whereas that behind theMonopolies and Restrictive Practices Act, 54 of 1969 iseconomic. However, these reasons though stated in thepreambles of the Acts do not affect the operation of the

enactments. It is here that the ratio decidendi differsfrom ratio legis.


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A decision involves a legal principle, but the application of astatute is not concerned with the reasons given for itsenactment. Judges do not enquire what the legislaturemeans, but only ask what the statute means. Here one hasto consider the maxim, cassante ratione legis, cessat ipsalex (the reason of the law ceasing, the law itself ceases). Itdoes not apply to statute law, since the statute continues toexist until it is repealed by another statute. On the otherhand, when the principle behind a decision disappears, thedecision ceases to be authority and no judge is bound tofollow it.


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On the Continent of Europe the authoritativesources of law are statutes and customs.However, they can never cover every possiblecase. Hence, courts are called upon to fill the gapsin law; a decision can become an authority only iffollowed in other cases. This is how a customaryrule of law is established. Thus Article 4 of theFrench Civil Code runs thus: "The judge who shallrefuse to give judgment under pretext of the

silence, of the obscurity, or of the inadequacy ofthe law, shall be subject to prosecution as guiltyof a denial of justice."


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And Article 1 of the Swiss Civil Code of 1907says: "The statute governs all matters within theletter or spirit of any of its mandates. In defaultof an applicable statute, the Judge is topronounce judgment according to the customarylaw, and in default of a custom according to therules which he would establish if he were toassume the part of a legislator. He is to draw hisinspiration, however, from the solution

consecrated by the doctrine of the learned andthe


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jurisprudence of the courts." Here Austinnotices a point of distinction between theContinental and English views on customary

law. In England customary law is nothingbut judiciary law based on anterior customand custom is regarded as binding becauseit is a part of Judge-made law. On theother hand, the judiciary law of the

Continent is binding because it is theevidence of a customary law.


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India follows the English practice. Courts are imperativelybound by decisions of higher courts in the hierarchy. At theapex stands the Supreme Court. Under Article 141 of theConstitution of India the law declared by the SupremeCourt is binding on all courts in India. It is empowered alsoto give advisory opinion under Article 143. Besides, Article145 confers on the Supreme Court rule-making powers.Similarly the High Courts are empowered under Article 227.From these provisions and the framework of the hierarchythe rules binding one court to another by way ofsubordination are deduced.


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Thus Section 3 of the Code of CivilProcedure, 1908 provides that a DistrictCourt is subordinate to the High Court and

every Civil Court inferior to a DistrictCourt and every Court of Small Causes issubordinate to the High Court and theDistrict Court. The Code of CriminalProcedure, 1973 also makes similar

provisions with regard to the jurisdictionof Sessions Judges and Magistrates


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The decision of a superior Court is binding on aninferior court and not the other way round. ASingle Judge must follow the decision of aDivision Bench and the latter must follow a FullBench decision of the same Court. As observed bySubba Rao, C.J. of the AP High Court inSubbarayudu v. State 1955 ALT53 "A SingleJudge shall not differ from the judgment ofanother Judge of the Court. If he does not agreehe shall refer the matter to a Bench of twoJudges. He is bound by the decision of a DivisionalBench exercising appellate jurisdiction.


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If there is a conflict of Bench decisions, heshould refer the case to a Bench of two Judgeswho may refer it to a Full Bench. A Single Judgecannot differ from the Divisional Bench unless aFull Bench or the Supreme Court has overruledthat decision specifically or laid down differentlaw on the same point. A Divisional Bench mustordinarily respect another Divisional Bench but ifit differs the case should be referred to a FullBench." All these provisions relate to "absolutelyauthoritative" precedents.


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Until the nineteenth century, case law was themain source of law, statutes being of relativelyminor importance. But today their roles arereversed, indeed some would say that statutesare too dominant, that our system is Choking onstatutes many of which are in need of repeal oramendment if only the legislature had time. Thereasons for the growth of the statutes as asource are several. Partly, it is because the socialand economic problems of the twentieth centuryhave demanded more sophisticated legaltechniques than can be provided by case law alone.


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The second category is that of "conditionally authoritative"precedents. They are ordinarily binding on the Court beforewhich they are cited, but are liable to be disregarded incertain circumstances. Thus the decision of a Single Judgeof a High Court is absolutely authoritative on thesubordinate Courts, but is conditionally authoritative ifcited before a Division Bench of the same High Court. Thisdisregard may take either of the two forms overruling ordissenting according as the disregarding court is one ofsuperior jurisdiction or of co-ordinate authority.


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Thus the decision of a Single Judge of theHigh Court is only conditionallyauthoritative and may be dissented from

by another Single Judge or overruled by aDivision Bench. However, a Division Benchcannot dissent from another DivisionBench decision. The correct rule on thepoint has been laid down by Sir Lionel

Leach in Seshamma v. v. N. Rao 1940) 1 MLJ400 (412).


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thus: "While a Judge of a High Court sitting alone is notbound on a question of law by the decision of another Judgesitting alone, this principle goes no further. The DivisionBench is thefinal court of appeal in an Indian High Courtunless the case is referred to a Full Bench, and one DivisionBench should not regard itself bound by the decision ofanother Division Bench on a question of law. If a DivisionBench does not accept as correct the decision on a point oflaw of another Division Bench, the only right and propercourse to adopt is to refer the matter to a Full Bench."Where a Full Bench takes a view contrary to that ofanother Full Bench of equal strength the matter should bereferred to a larger Bench


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Thursday, October28, 2010

Dr. Tabrez Ahmad, KLS KIIT. 30

A third category of precedents is called"persuasive". And this is not a legal source of law it may be styled a historical source of law. Allthe same it is entitled to high respect and may be

followed by a court if its reasoning commendsitself as sound and cogent. Thus the decisions ofone High Court are only persuasive precedents inother High Courts. To this category belong therulings of English and American courts. It is saidthat a previous case is binding only as to its ratiodecidendi and the ratio is distinguished fromobiter dicta which do not bind.


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Thus obiter dicta have persuasive influence. Anobiter dictum is always something said by a judge.In the words of Lord Campbell in Attorney-

General v. Dean and Canons of Windsor : 8 HL 369"Observations made by members of the House (of Lords)beyond the ratio decidendi may be entitled torespect (but) are only to be followed insofar asthey may be considered agreeable to sound reason

and to prior authorities."


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Finally, Article 141 of the Constitution uses thewords "all courts", that is, the courts other thanthe Supreme Court. And the Supreme Court is

thus free to depart from a prior decision of thecourt. However, it does not mean that it wouldreadily do so on every case: "Accepting that thisCourt is not bound by its own decisions and mayreverse a previous decision, the Court will surely

be slow to do so unless such previous decisionappears to be obviously erroneous."


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This finds an echo in the announcement in Englandon July 26, 1966 by the House of Lords that itwould no longer be absolutely bound by its owndecisions: "Their Lordships regard the use of

precedent as an indispensable foundation uponwhich to decide what is the law and its applicationto individual cases. (Since) too rigid adherence toprecedent may lead to injustice in a particularcase and unduly restrict the proper developmentof the law, they propose to modify their presentpractice and to depart from a previous decisionwhen it appears right to do so."


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The Ratio Decidendi of a case What is "law" in a precedent is its ruling or ratio

decidendi in respect of instant and futurelitigants. And knowing the law in this contextmeans knowing how to extract the rationesdecidendi from cases. The expression, ratiodecidendi is "the reason for (or of) deciding".Theword "decision" has four shades of meaning. First,it may mean the ultimate order made by the Court

to determine the case and on the strength of thisone party or another may seek execution.


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Second, it may refer to the whole case. Third, itmay mean the determination of a particular issue.Fourth, it may refer loosely to the reason forreaching such a determination. And G.W. Paton

prefers the third meaning, that is, the decision ofany issue in the course of judicial proceedings. Inthis context, "order" refers to the final ordermade by the court and binding the parties to theproceedings, while "judgment" refers to thereasons given by the judgment to explain andjustify its order.


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The expression ratio decidendi is normally used torefer to some binding rule found in decided cases,which a later court cannot generally question. Anda defining technique is to elucidate the judicial

power to make binding rules and a rule madewithin the ambit of this power will constitute theratio of the case. There is thus a distinctionbetween the rule-making of Judges which is intravires a power to make binding rules and the rule-making of Judges which is ultra vires this power.But there is an important limitation on the rule-making power vested in Judges.


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And this is the principle which denies them thepower to make binding rules unless they arerelevant to the determination of actual litigationbefore the court. In the wake of this connection

came a corollary, namely, a principle reducing theimportance of communications of the lawdelivered by Judges, either accidentally ordeliberately upon hypothetical issues. As a resultobiter dicta grew up they are in a sense ultravires enunciations of law. The distinction betweenratio decidendi and obiter dictum is in essence adistinction between relevance and irrelevance.


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A rule-making power may have two limitations, formal orsubstantial. They may restrict the way in which rules aremade and they may also restrict what rules are made. And aJudge's power is subject to both kinds of limitation.However, ratio deddendi has only a formal limitation,namely, that a rule acted upon in court can rank as a bindingrule. Of course, there may be an exception, for example,the per incuriam rule. The fact that the rule has been actedupon is the hallmark of relevance. And this is expressed in avariety of ways, e.g. "the rule applied", "the reason for thedecision", "the basis of the decision".


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Here one may notice the difference between therule-making procedure of Parliament and thecase-law. The former operates on a text, whilethe Judges in case-law do not draft the rules to

act upon. And Judges decide cases by acting uponrules. The minimum required for a Judge to actupon a legal rule consists of three things: (a) heshould have a rule in mind while deciding to act,without a precise formulation of a rule; (b) hedecides that the rule is applicable, that is, somefact or set of facts should be subsumed underthe rule; and


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(c) his conduct should conform to theprescriptions of the rule. In the judicial processthe Judge should show that he is acting upon a

rule. It should be remembered that case-law rulesare incomplete: Judges do never claimcompleteness for the statements of rules andexceptions. The reason why a Judge enunciatesthe rule of law to act upon is that the rulejustifies his action. But this must be a ruleacceptable as a rule of the legal system.


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In Osborne v. Rowlett, Sir George Jesselsays: "The only thing in a Judge's decisionbinding as an authority upon a subsequent

Judge is the principle upon which the casewas decided." This brings out thedistinction between the binding nature ofa decision on a particular issue and thebinding nature of a principle "upon which

the case was decided". The former isprecise, while the latter is not.


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Ordinarily such precise decisions are supportedby a course of reasoning which establishes ageneral principle of law used by the court to

justify its decisions.T

his principle is called theratio decidendi of the decision. And its bindingnature is of a different kind. Unfortunately Patonuses "proposition" in place of "principle": "Acourse of reasoning establishes a generalproposition of law (for the court) to justify itsdecision." And this is not correct.


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The distinction between a "principle" and a"proposition" may be likened to that between a"propositional function" and a "proposition". In

the words of Bertrand Russell: "A propositionalfunction is any expression containing anundetermined constituent or severalundetermined constituents, and becoming aproposition as soon as the undeterminedconstituents are determined. If I say 'X is a man'that is a propositional function."


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If we substitute "Robinson" for X in "X is a man", then"Robinson is a man" expresses a true proposition. Russellexplains this in his Principia Mathematica thus: "By a'propositional function' we mean something which contains avariable X, and expresses a proposition as soon as a value isassigned to X. That is to say, it differs from a propositionsolely by the fact that it is ambiguous: it contains a variableof which the value is unassigned. The values of the functionare propositions." Since propositions of law are akin to rulesof law, Ronald Dworkin distinguishes between "principles"and "rules" in two ways. First, principles differ from rules


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in the character of the directionthey give while rules are applicable

in an all-or-nothing fashion, principlesState "a reason that argues in onedirection but (do) not necessitate aparticular decision". Second,

principles have a dimension of weightor importance which rules do not.


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No Judge ever lays down any general propositionof law and therefore one has to discover orabstract a ratio or principle from the facts of thecase decided. Hence with the introduction of new

facts, an extension of the ratio or principle takesplace, though the authority of the previous casesis not thereby disavowed. And in this way thecase-law has developed from precedent toprecedent so as to keep pace with the changingneeds of society. Markby realised this flexibilitywhile speaking about the "judiciary law".


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He said: "Were the judges in England compelled,as in Italy, France and Spain to State separatelyand fully what French lawyers call the motives,and Spanish lawyers the points of their decisions

their findings in fact and the rules of law there would be a complete revolution in thehistory of English case-law. The law being statedin distinct propositions, altogether separate fromthe facts, would be easily ascertained. This,coupled with our notions as to the authority ofprior


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decisions, would render a conflict almostimpossible. The law would soon become clear andprecise enough; but so far as judicial decision wasconcerned, it would become much more rigid. It is

because English Judges are absolved from thenecessity of stating general propositions of lawand because, even when these are stated, theyare always read as being qualified by thecircumstances under which they are applied, thatour law remains bulky and uncertain, but has also,in spite of our respect for precedent, remainedfor a long period flexible."


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The sources do not provide a neatly ordered legalframework under which one particular factsituation is covered by one particular source oflaw. Rather the sources frequently overlap and on

occasions conflict. Different case law sources,may be potentially applicable to the same factsituation. Statutes may also overlap in a particularcontext. There may occasionally be a conflictbetween their provisions or the way they havebeen interpreted. Both statutory and case lawsources may overlap, it being left to the courts toresolve their competing claims to be applied tothe situation in question.


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Concepts of law are more likely chess pieces.They can be used to produced certainresults but the players have a choice as tothe move. Similarly, lawyers and judgesoften have a choice as to how they willmove the concepts. The way in which they

are moved and are applied to facts involvesa process of reasoning.


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Legal reasoning and logicLawyers are often thought of as having logicalminds. This gives the impression that legalreasoning itself is or should be governed by logic.

When we refer to a logic we are often thinking ofthe deductive form of argument known as thesyllogism (drawing a conclusion from twostatements).

All living things are mortalKatrina Kaif and Salman Khan are living things

Therefore Katrina and Salman are mortal


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Types of reasoningThere are two types of reasoning1. Deductive reasoning2. Inductive reasoning

Deductive reasoning

A lawyer advising his client as to the application of a detailed statutoryprovision will employ deductive type of reasoning.

The statute is a major premise, the lawyer identifies his case as falling withinthe statute and then deduces as the conclusion the way in which itapplies to his client.

Deductive logic is only applicable once a clear major premise has beenestablished.


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Inductive reasoningIf the source is not a statute but case law, no major premise islikely to be clear from just one case decision. Instead, thelawyer will have to examine several cases to find a majorpremise which underlies them all. He will have to reasonfrom particular case decisions to a general proposition.This

form of reasoning is often referred to as inductive logic asopposed to deductive logic where the reasoning is from thegeneral proposition to the particular conclusion in the caseitself.

Judges too make use of inductive and deductive logic whendeciding cases.


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Cases which involve a question of what law should be appliedcome before the courts precisely because there is no purelylogical answer to the question. Instead there is a choicewhich, according to Lord Diplock, is exercised by making apolicy decision. But how does the judge make this decision?

Obviously will be influenced by the rhetoric of the partiescounsel, by the way in which they have framed the issue andthe analogies they have suggested. He may have his ownpersonal views, although on legal matters these are likely tohave become institutionalised over the years of practicebefore the courts. Perhaps the most important influence onhis choice is the knowledge that he will have to justify hisdecision in a reasoned judgment.


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Thanks


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Precedent orPrecedent orstare decisisstare decisis..Precedent orPrecedent orstare decisisstare decisis..

Legal Reasoning and JustificationLegal Reasoning and Justification


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The term commonly used for the doctrine ofprecedent is called stare decisis. This is anabbreviation of the Latin phrase, stare decisis etnon quieta movere (to stand by precedents andnot to disturb settled points). Generally speakingstare decisis means that a point of law oncesettled by a judicial decision is not to be departedfrom. In other words, an earlier case whendirectly in point must be followed in a subsequentcase.


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Legal Reasoning and

JustificationProfessor Neil Mac Cormick in his book LegalRaeasoning and Legal Theory, suggests that twofactors in particular may be considered by judgewhen justifying his decision. The first is theextent to which a proposed decision will coherewith existing principles and authorities: thegreater the inconsistency with the existing legalframework that will result from a proposeddecision, the less likely it is to be adopted.


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The second concerns the broaderconsequences of the decision for potentiallitigants, the legal system and indeed therole of law in society.

Judges may refer to common sense, thesupposed view of the common man or they

may refer to notions of justice andfairness.


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Some critics see some times arguments as merelyplaying with language. They argue that ifjudgments are deconstructed by unravelling thelinguistic devices, the emptiness of legal reasoning

will be revealed. This view, often associated withthe movement known as critical legal studies,challenges conventional thinking but to someextent depends upon setting up an easy target: iflegal reasoning purported to provide a scientificroute to the truth one would have more sympathywith the critics, but that is not its nature.


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Rather as Professor John Wisdom has put it, legalreasoning is not a chain of demonstrativereasoning. It is a presenting and re-presenting ofthose features of those cases which severally co-

operate in favour of the conclusion Thereasons are like the legs of a chair not the linksof a chain .

It is important to realise that a judge can onlyproperly take into account those considerationswhich can be adequately argued before a court oflaw.


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We will continue..

Thanks


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PrecedentSalmond says:A precedent is a judicial decision which

contains in itself a principle. The

underlying principle which thus forms itsauthoritative element is often termed theratio decidendi. The concrete decision isbinding between the parties to it, but it isthe abstract ratio decidendi which alone

has the force of law as regards the worldat large.


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John Chipman GrayIt must be observed that at the common law notevery opinion expressed by a judge forms ajudicial precedent. In order that an opinion mayhave the weight of a precedent, two things mustconcur: it must be, in the first place, an opiniongiven by a judge, and in the second place, it mustbe an opinion the formation of which is necessaryfor the decision of a particular case, in otherwords, it must not be obiter dictum.


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Both the learned authors, on reaching this point ofsafety, stop. Having explained to the student thatit is necessary to find the ratio decidendi of thecase, they make no further attempt to state anyrules by which it can be determined. It is truethat Salmond says that we must distinguishbetween the concrete decision and the abstractratio decidendi, and gray states that the opinionmust be a necessary one, but these are only vaguegeneralisations.


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Phrase ratio decidendi is one of the mostmisleading expression of English law, forthe reason which the judge gives for his

decision is never the binding part of theprecedent. The logic of the argument, theanalysis of the prior cases, the statementof the historical background may all be

demonstrably incorrect in a judgment, buta case remains a precedent nevertheless.


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It would not be difficult to cite a largenumber of leading cases, both ancient andmodern, in which one or more of the

reasons given for the decision can beproved to be wrong, but in spite of this,these cases contain valid and definiteprinciples which are as binding as if the

reasons on which they are based werecorrect.


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It may be laid down as a general rule thatthat part alone of a decision of a court oflaw is binding upon courts of co-ordinate

jurisdiction and inferior courts whichconsists of enunciation of the reason orprinciple upon which the question beforethe court has really been determined. Thisunderlying principle which forms the only

authoritative element of a precedent isoften termed the ratio decidendi .


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Professor Morgan of the Harvard LawSchool, in his valuable book The study ofLaw says: Those portion of the opinion

setting forth the rules of law applied bythe court, the application of which wasrequired for the determination of theissues presented, are to be considered as

decision and as primary authority in latercases in the same jurisdiction.


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Thus, a case may be presented, involving animportant principle of law, although thecourt has given judgment without

delivering an opinion. At the present time,we rarely find a case of any importance inwhich there is not a statement of thereasons on which the judgment is based,although occasionally an appellate court

will affirm without opinion a case whichinvolves an interesting point.


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We will continue.

Thanks


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How to determine ratio

of a case


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Since the ratio decidendi of a case has the natureof a propositional function, it is variable andbecomes elusive. And jurists have even been insearch of it. Any legal system using precedent has

to consider the way in which they are relevant. Tothis end the relevancy is found in the fact thatdecisions involve some principle of generalapplication. But the question is: how is this to beascertained? Classical theory has regarded thebinding part of a decision as the legal principle

formulated.


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him the ratio decidendi is controlled by therelation between "the material facts" of the caseand the holding on these facts. While the ratioconsists of the very reasoning necessary toexplain the holding on "the material facts" foundby the precedent judge, he suggests that thebetter way to approach the problem is toelucidate the ratio of a case from the factsthemselves rather than from the principleenunciated by the Cour.


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Julius Stone challenges Goodhart and distinguishes between"descriptive" and "prescriptive" ratio decidendi to conclude thatfacts may be of many possible "levels of generalisation".Descriptively the phrase imports an explanation of the court'sreasoning to its conclusion based on sociological, historical andeven psychological inquiry. And the finding from such an inquiry istrue or untrue as a matter of fact. This may be sought at variouslevels. Prescriptively the phrase refers to a normative judgment,requiring us to choose a particular, that is, binding ratio decidendi.In other words, Stone's argument is that Goodhart's theory yieldsindeterminate results because the "principle" derivable from acase by the Goodhart method of "material facts plus decision" isentirely dependent on the level of generality at which one chooses

to describe the facts.


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In this context R. Cross defines "the ratiodecidendi of a case" as "any rule of lawconsidered necessary by the Judge for thedecision of the case: it is that part of the

decision which has binding effect and the facts ofthe case play a large part in its identification".Hence, all other statements of law are obiterdicta. Now, the word "necessary" is used in thesense of "essential to the working of a judicialsystem". It seems Cross supports Goodhart. And a

binding principle may be sketched as follows.


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Where the facts are a, b, c, d, e, g and areported decision is P, the decision is saidto be based on the rule that whenever A,

B, C then X should be decided. Here thelower case letters stand for the particularcircumstances of the case and capitalletters for general properties of facts sothat a is an instance of A, etc. Thus the

ruling in P can be summarised as: P: a, b, c, d, e, g/A.B.C X.


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The novel case, N, is a case of a1, b1, c1, 1, (i.e. not e1),f1 and it is governed by P, which is binding on the court.Now, in case the court decides to follow P, its ruling will be:

N: a1, b1, c1, d1, 1, f1, /A.B.C X. In spite of some difficulties Goodhart's definition of ratio

decidendi may be taken as a working rule. According to himthe ratio is equated with the material facts of the case plusthe decision thereon. And the rules for finding the ratio orprinciple may be summed up as follows:

(1) The principle of a case is not found in the reasons givenin the opinion.


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(2) The principle is not found in the rule of law set forth asthe opinion.

(3) The principle is not necessarily found by a considerationof all the ascertainable facts of the case, and the Judge'sdecision.

(4) The principle of the case is found by taking account (a) of the facts treated by the Judge as material, and (b) his decision as based on them. (5) In finding the principle it is also necessary to establish

what facts were held to be immaterial by the Judge, forthe principle may depend as much on exclusion as it does oninclusion.


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Goodhart himself mentions that his definition suffers from twoinfirmities. The first is that the facts are "infinitely various",though the material facts are strictly limited. Thus theconsideration in a contract is a single material fact but the kindsof consideration are unlimited. Secondly, it may happen that thefacts, stated by the Judge to be real and material, can be actuallynon-existent. This is a hypothetical case. It may be pointed outthat the whole doctrine of precedent is based on the theory thatgenerally Judges do not make mistakes either of fact or of law. Inother words a decision given per incuriam is an exception thatconfirms the general rule. A case may be wrongly decided ordecided for the wrong reason. As pointed out by Simpson: "Theratio of a case is only binding if it is not inconsistent with statute,

or inconsistent with the ratio of another decision.


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Now cases may differ according as they contain a single opinion orseveral opinions. The determination of the ratio decidendi becomeseasier if there is only a single opinion or all the opinions are inagreement. In case the several judgments agree in the result, butdiffer in the material facts on which they are based the principleis limited to the sum of all the facts considered material by thevarious judges. Thus a case involves facts A, B and C and thedefendant is held liable. The first judge finds that fact A is theonly material fact, the second that B is material, the third that Cis material. The principle of the case is therefore, that on thematerial facts A, B and C the defendant is liable. If, however, twoof the three judges had agreed that fact A was the only materialone and that the others were immaterial, then the case would be a

precedent one on this point, though the third Judge had held thatthe facts B and C were material ones.


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Thursday, October

28, 2010


This may sound too mechanical and may be seen in the caseof Golak Nath v. State of Punjab, as decided by the IndianSupreme Court.

Five judgments were delivered in the Golaknath case by (1)the Subba Rao block of Subba Rao, C.J., Shah, Sikri, Shelat

and Vaidialingam, JJ.; (2) Hidayatullah, J.; (3) the Wanchooblock of Wanchoo, Bharagava and Mitter, JJ.; (4) Bachawat,J; and (5) Ramaswami, J. They may be reduced to three ifthe joint dissenting judgments of the Wanchoo block areequated with the separate dissenting judgments of (4) and(5). And the position would be like this: the Subba Rao blockof five; the Wanchoo block of five; and the lone judgmentof Hidayatullah, J. Six propositions seem to have been laiddown by the judgments as follows:


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(a) Parliament cannot amend Part III of the Constitution ofIndia so as to "take away or abridge" the fundamentalrights; (b) all amendments made prior to February 27, 1967and affecting fundamental rights other than the "right toproperty" have full validity; (c) the effect of the first,

fourth and seventh amendments on the "right to property",though made prior to February 27, 1967 remains valid andoperative as part of the law of India; (d) the seventhamendment to Article 31-A(2) is similarly valid andoperative; (e) the seventeenth amendment expanding thelist of statutes in the Ninth Schedule is similarly valid andoperative; and


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(f) the impugned land reform legislation of Punjab andMysore (Karnataka) is wholly valid. It is interesting to notehow these propositions are established, (a) is held by themajority comprising (1) and (2); (b) is held by (2) only,though it necessarily follows from the view of the Wanchoo

block comprising (3), (4) and (5); (c), (d) and (f) are heldunanimously; and (e) is held by ten Judges with Hidayatullah,J. dissenting. And the question is how to extract a singleratio out of these judgments. The answer is that the tangleof five separate judgments cannot possibly yield any singleratio. As observed by R. Cross:


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"The ratio decidendi is a conceptionpeculiarly appropriate to a single judgment.Accordingly, it is probably impossible to

avoid something in the nature of arbitraryrules to meet cases in which severaljudgments are delivered. The main troubleis that it is impossible to formulate these

rules with anything like completeprecision."


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Three approaches may be considered in this connection. Thefirst approach takes the phrase itself as a sufficient guideto the ratio. Thus in the Golaknath case one is to look forthose propositions of law which were necessary andsufficient to base the "declaration" made by the Supreme

Court. Article 141 uses the expression "declared" and this isexplained by Subba Rao, C.J. thus: "The expression'declared' is wider than the words 'found or made'. Todeclare is to announce opinion. Indeed the latter involvesthe process, while the former expresses result.Interpretation, ascertainment and evolution are parts ofthe process, while that interpreted, ascertained or evolved

is declared as law. The law declared by the Supreme Courtis the law of the land."


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And what was necessary for the decision was theconjunction of the reasons given either (i) by the 5-manSubba Rao block and the 5-man Wanchoo block; or (ii) bythe 5-man Subba Rao block and by Justice Hidayatullah; or(iii) by the 5-man Wanchoo block and by Justice

Hidayatullah. On any of these hypotheses, two sets ofreasons would be necessary; and the one wholly immaterialand this might be any one of the three. The Wanchoo blockwas in a minority in regard to proposition (a) and this doesnot mean that its reasons were not "necessary to thedecision". However, these reasons can be ignored only onthe ground that there was sufficient majority to base the

decision without them. But this equally applies to either ofthe two sets of "majority" reasons.


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The result is that the first supposed test of the ratio decidendiwould lead to an insoluble choice amongst three pairs of sets ofreasons with each pair comprising two different sets of ideas. Inpractice, of course, the choice is not wholly insoluble. It is evidentthat the reasons of the Wanchoo block are inconsistent with thoseof either the Subba Rao block or Justice Hidayatullah. But the last

two reasonings are not necessarily inconsistent. Their compatibilitytends to assume that these two judgments form the source of theratio. Here one may hold with Chief Justice Centlivres in theSouth African case of Fellner v. Minister of the Interior, thateven if a case has no apparent ratio decidendi, the actual"decision" is "binding". In the narrowest sense of "decision", thisgives binding force only to proposition (f); but on a wider meaning

of "decision" all the propositions are binding.


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The second approach may be formulated in terms of"counting heads". Here one simply adds up the number ofJudges giving the propositions. Of course, the search is fora majority of the participating judges. Let us take a casewith four views, p, q, r and s and in a court of 11 Judges p

is supported by 4 judges, q and r by 3 each, and s, by theremaining one. On a strict version of "counting heads" noneof the four views would be established, since none had aclear majority. On the looser version p had more supportthan any of the others and it would be part of the ratio. Butthis violates Article 145(5) of the Indian Constitution,requiring that the "judgment" and "opinion" need be

"delivered with the concurrence of a majority of theJudges present at the hearing of the case".


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As observed by Greenbery S.A. in the Fellner case: "Theobject of the enquiry is to ascertain what is the ratiodecidendi and not what are the opinions of Judges. Insofaras the law is built up by judicial (precedent), it is not builtup on a counting of heads of all the members of the Court.

It is in the reasons of the majority of the Court for theorder that the ratio decidendi is to be sought, the reasonsof the dissenting Judges being irrelevant for this purpose"In this context, "counting heads" in its looser version wouldhelp us only as to the acceptance of "prospectiveoverruling".


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Thursday, October

28, 2010


The third approach may be termed "the majorityof the majority". If the Golaknath decision isproposition (a), it is supported by 6 of the 11Judges and 5 support it for identical reasons. By

equating the ratio with the reasons given by "themajority of the majority", Golaknath is confinedto the single judgment delivered by Chief JusticeSubba Rao with Justice Hidayatullah concurringwith him. And the difficulties involved inextracting a ratio from Golaknath lead one to

prefer a pragmatic approach to precedent construction to rationes


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Analysing of theAnalysing of the

"Common Cause"Common Cause

Analysing of theAnalysing of the

"Common Cause"Common Cause


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Thursday, October

28, 2010


The "Common Cause" is a registered Society. Under Article32 of the Indian Constitution the Common Cause and threeretired government servants asked for striking downcertain provisions of the Commutation of Pension Rulesapplicable to civilian and defence pensioners, since they

permit the Union of India to recover more than what is paidto the pensioners upon commutation. Besides, thepetitioners sought for a direction asking the Government torationalise its scheme of commutation. The Single Judge oftheSupreme Court has delivered two judgments onerelating to the civilian employees and the other relating tothe defence personnel and tried to make it a single

judgment.


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During the course of the hearing the Union Government agreed torestore the commuted portion of the pension in respect of "allcivilian employees at the age of 70 years or after 15 yearswhichever is later". The facts are: (1) commutation makes availablea lump sum to a pensioner; (2) there is the risk factor involved incase the pensioner dies before full recovery; (3) some

Governments including State and Union have formulated a 15-yearrule for restoration of the commuted pension; and (4) the 15-yearformula is not justifiable because it permits recovery of more thanthe dues. The court has considered facts (1), (2) and (3) asmaterial and ignored fact (4) in coming to the decision thatrestoration would take place on the expiry of 15 years fromretirement. But this decision is given per incuriam, since it abets"unjust enrichment" banned by Section 70 of the Indian ContractAct, 1872.


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Thursday, October

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As observed by Gajendragadkar, J. of theSupreme Court in State of West Bengal v. B.K.Mondal: "What Section 70 prevents is unjustenrichment and it applies as much to individuals as

to Corporations and Government." In this context,Simpson observes: "The ratio of a case is onlybinding if it is not inconsistent with statute, orinconsistent with the ratio of another decision."And since the 15-year rule in the Common Causeviolates both it cannot be the ratio of the case.

In the result, it goes out.


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The total amount obtained by a pensioner at a time is the product of themonthly payment out of the pension and the number of years necessary forfull recovery by Government. In the judgment this has been ignored andthe "multiplier" widened so as to make it equal to 15 years. But there isabsolutely no scope for the addition of two years to the multiplier as isevident from the above equation. Moreover, this multiplier is a variable inrespect of each pensioner, because of the variability of I and Y involved inthe commuted pension. Therefore, it cannot be equated with the fixed 15-

year rule by the addition of two years to the multiplier. It is amathematical paradox. Finally, the judgment makes "equity" or equalitystand on "the more or less basis". Mathematically this is absurd. For"more" is denoted by the sign > , "less" by < , while equality by =. Now, if >or < remains = cannot take the field. This, it is most respectfullysubmitted, sounds like an Orwellian paradox: "All animals are equal, butsome animals are more equal than others."


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Thursday, October

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In this context we are to extract the ratio from the CommonCause. The Court's decision is the restoration of the commutedportion of the pension on the expiry of 15 years from retirement.This applies to civilian and defence pensioners and is madeeffective from April 1, 1985. And the question is: what is the ratiodecidendi of the case? It has already been shown that the court

has accepted the 15-year rule since the Governments haveaccepted it. This, it is submitted, cannot be called a judicialdecision. For Misra, J. concludes: "Many of the State Governmentshave already formulated schemes accepting the 15-year rule. Wedo not think we would be justified in disturbing the 15-year rule sofar as civilian pensioners are concerned." Here Section 70 banning"unjust enrichment" is violated and the Court is blissfully ignorantof this. The 15-year rule has been challenged by the Common Causebecause it abets the commission of this offence. This is thejustification for the Court's intervention in the matter.


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However, the correct yardstick has been evolved by thecourt in respect of the defence pensioners: "the 'years ofpurchase' basis". Unfortunately, the court has erred, it issubmitted, in adopting two bases on commutation accordingas the pensioners are civilian or defence while coming to the

same decision as to the restoration of the commutedportion of pension. This is wrong. As pointed out by theSupreme Court in D.S. Nakara v. Union of India: "Thepensioners for the purpose of pension benefits form a class.The equal treatment guaranteed in Article 14 is whollyviolated inasmuch as the pension rules accord differentialand discriminatory treatment to equals in the matter of

commutation of pension. Division is thus both arbitrary andunprincipled."


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The Court has proceeded from the start on thetwo yardsticks one for the civilian pensionersand the other for the defence personnel. Thecivilian yardstick is the 15-year rule, while the

defence yardstick is "the years purchase' basis".Thereafter, the latter has been equated with theformer by the addition of two years. But thisdoes more injustice than justice. Yet the Courtclaims that this is 'equitable'. This is, to say the

least, unfair.


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Thursday, October

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Now, the question is: what is the ratio? It has already beenshown that there has been a double-think in the adoption oftwo yardsticks on the restoration of the commuted portionof pension. For, the 15-year rule and "the 'years ofpurchase' basis" are two contradictory ideas and they

remain irreconcilable. Secondly, double-talk appears inlengthening the procrustian bed of the years of purchasebasis so as to make it fit in with the 15-year rule. Thirdly,the case gives the impression of two judgments, concurrentand dissentient. And the concurrent judgment has beenarrived at without any legal reasoning. It is the function ofthe "hunch" in judicial decision. Here the Judge decides by

feeling, and not by judgment; by "hunching" and not byratiocination. As observed by Hutcheson


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"The vital, motivating impulse for the decision is an intuitivesense of what is right and wrong for that cause. And thatJudge having so decided enlists his every faculty andbelabours his laggard mind, not only to justify that intuitionto himself, but to make it pass muster with his critics.

Judges really do try to select categories or concepts intowhich to place a particular case so as to produce what thejudge regards as a righteous result." Since the decision onthe 15-year rule is given per incuriam, it has no bindingeffect at all. Fourthly, in case the one goes out, the otherremains. Hence, the dissentient judgment, namely, "the'years purchase' basis" remains and attains the status of

concurrent judgment.


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And the question of its expansion into the 15-year rule doesnot arise, since the latter violates Section 70 of theContract Act and is not enforceable. Finally, "the 'yearspurchase' basis" becomes the ratio decidendi leading to theorder for restoration of the commuted portion of pension

to the pensioners. And the 15 years' limitation does notapply. In other words, the number of years necessary torepay the total lump sum would govern the recovery and nopensioner can be made to pay more than what is paid to him.And this is what the Common Cause has asked for.


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ratio in the "Commonratio in the "Common

Cause"Cause"

ratio in the "Commonratio in the "Common

Cause"Cause"


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Theories falling under quasi-contract are founded on abroad principle that unjust enrichment should not beretained at the expense of one who has suffered. In Frenchlaw this principle is known by the name of actio de in remverso, which "is founded on the principle of equity which

forbids one man to enrich himself at the expense ofanother". This is applicable where "the estate of one personbeing enriched without lawful cause at the expense ofanother person, the latter, in order to obtain what is due tohim, does not enjoy the benefit of any action based oncontract, quasi-contract, delict or quasi-delict".


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Some recent codes provide for the return of unjustbenefit. This may be seen in Article 123 of the Polish Code,Article 703 of the Japanese Civil Code, Articles 399-402 ofthe Civil Code of Soviet Russia, Article 62 of the SwissFederal Code of Obligations, Article 812 of the German Civil

Code and Article 179 of the Chinese Code.T

he AmericanRestatement of the Law of Restitution, 1937 at p. 634provides for an accounting by the plaintiff as a conditionfor restitution. Lord Wright in England has pleaded for anew law of restitution in place of the fiction of the impliedcontract, where it is unreasonable and unjust for thedefendant to retain the benefit he has received.


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The doctrine of unjust enrichment flowing from quasi-contract was partially stated in Section 70 of the IndianContract Act, 1872. And the Supreme Court noticed it inState of West Bengal v. B.K. Mondal in which it was appliedto Government. Subsequently, the concept of unjust

enrichment has suffered a sea change at the hands of theSupreme Court in Mulamchand v. M.P. State The Court hasheld that Section 70 is based on a different kind ofobligation: "The juristic basis of the obligation in such acase is not founded upon any contract or tort but upon athird category of law, namely, quasi-contract orrestitution." In this connection the Supreme Court has

quoted with approval the observations of Lord Wright inFibrosa v. Fairbairn


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thus: "Any civilised system of law is bound to provideremedies for unjust enrichment or unjust benefit, that is,to prevent a man from retaining the money or some benefitderived from another which it is against conscience that heshould keep. Such remedies in English law are different

from remedies in contract or in tort and fall within a thirdcategory of the common law called quasi-contract orrestitution." The concept has been further widened so as toinclude both law and equity. Hence the Indian SupremeCourt has been pleased to note the latest development ofthe law by quoting the observations of Lord Denning inNelson v. Larholt


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"It is no longer appropriate to draw a distinction between law and equity.Principles have now to be stated in the light of their combined effect.Remedies now depend on the substance of their right, not on whether theycan be fitted into a particular framework. The right here is not peculiar toequity or contract or tort, but falls naturally within the important categoryof cases where the court orders restitution if the justice of the case sorequires." And the principle of restitution has been brought on a par with

the American Restatement of the Law of Restitution. This means accordingto the Supreme Court that "a person (seeking) restitution has a duty toaccount to the defendant for what he has received in the transaction fromwhich his right to restitution arises". This is the present position of thelaw of restitution since Section 70 of the Contract Act started on its

journey in 1872. And the Common Cause v. Union of India has been decidedon this law, though the Court has not uttered a single word in this regard.Lord Denning's expression summarises the law: "restitution if the justice

of the case so requires". And the Indian Supreme Court has approved ofthis in Mulamchand.


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Thursday, October

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Since the law of restitution is applicable to commutation,the 15-year rule is arbitrary and it causes injustice. Here itis necessary to bring out the distinction between ratiodecidendi and obiter dictum. As observed by H.J. Abraham:"Ratio decidendi refers to the essence, the vitals, the

necessary core of the decision; obiter dictum is more orless extraneous, presumably unnecessary-to-the decisionpoint made by the author of an opinion. In other words, theformer constitutes the legal rule to be followed andadhered to below; the latter is an expression of a briefviewpoint, or sentiment, which at least in theory, has nobinding effect


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Of the two reasons "the 15-year rule" and "the 'years ofpurchase' basis" the first cannot be justified since it incarnatesinjustice in the shape of unjust enrichment. In other words, the15-year rule is an "unnecessary to the decision point made by theauthor of an opinion: (it) is an expression of a brief sentiment(having) no binding effect". Hence, it is an obiter dictum. On the

other hand, "the 'years' purchase' basis" is "the necessary core ofthe decision: (it) constitutes the legal rule to be followed andadhered to below". In other words, this is the ratio decidendi,having the binding effect. As pointed out by Simpson: "the reasonwhy a judge enunciates the rule of law upon which he acts is thatthe rule justifies his action: not any rule will serve as ajustification, but only a rule which is acceptable as a rule of thelegal system."


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Thursday, October

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There is perpetual flux in the total push and pull of theuniverse and a judge faces a twofold task: (1) he must firstextract from the precedents the underlying principle, theratio decidendi; (2) he must then determine the path ordirection along which the principle is to move and develop.

Unfortunately Misra, J. has not in the Common Causefollowed the salutory advice given by Cardozo. In case ofconflict of principles, one may point to one conclusion andanother may point to a second conclusion. A judge is tochoose between two paths, selecting one or the other and insome cases he is to hit upon a third, which will be theresultant of the two forces in combination or will represent

the mean between the extremes.T

his is illustrated by thecase of Riggs v. Palmer


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wherein it was decided that a legatee murdering his testator would not bepermitted to enjoy the benefits of the will. Three principles contended formastery. The first was the principle of the binding force of a will disposingof the testator's estate in conformity with law. This pushed to the limit ofits logic seemed to uphold the title of the murderer. The second principlewas that Civil Courts might not add to the pains and penalties of crimes.This pushed to the limit of its logic seemed to uphold his title. Over against

these two was the third principle rooted in justice, namely, that no manshould profit from his own iniquity. And the logic of this principle prevailedover the logic of the other two. In the Common Cause also the same may benoticed. The logic of "the years' purchase basis" is to prevail over the logicof the 15-year rule, since the former is rooted in justice while the latter isnot. And the ratio decidendi of the case is "the 'years purchase' basis". Inthe words of the Supreme Court: "A decision is binding not because of itsconclusion but in regard to its ratio and the principle laid down therein."


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Conclusion In a famous dictum Lord Halsbury said: "A case is only authorityfor what it actually decides. I entirely deny that it can be quotedfor a proposition that may seem to follow logically from it. Such amode of reasoning assumes that the law is necessarily a logicalcode, whereas (it) is not always logical at all." Literally interpretedit would be fatal to any system of precedents. But what Halsbury

meant is that there is more to the law than a mechanical processof logical deduction. It is obvious that the Judge has in every caseto decide for himself which of the circumstances of the allegedprecedent were relevant to the decision and whether thecircumstances of his own case are in their essentials similar. Oncehe has decided which principle to apply, a bit of logic may enterinto his application of principles. But there cannot always be aprinciple which imposes itself or an absolutely inescapable logicaldeduction. Generally there is a choice


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And this has been explained by Chandrachud, C.J. in Deenav. Union of India thus: "Any case, even a locus classicus, isan authority for what it decides. It is permissible to extendthe ratio of a decision to cases involving identical situations,factual and legal, but care must be taken to see that this is

not done mechanically, that is, without a close examinationof the rationale of the decision cited as a precedent." In this context the role of the Judge is described by Lord

Wright while discussing Bell v. Lever Bros thus


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The judge could go step by step with previous authorities tothe point that an agreement based on mistake (is)unenforceable. Then he would have to decide whether thesame result followed when the prior contract was indeedexisting, but could be cancelled without compensation and

was voidable. Here the ways parted, and the judge had tomake up his mind by analogical reasoning, and by hisperception of what was just or convenient."

And the Common Cause, it is submitted, leaves much to bedesired insofar as the "analogical reasoning" and the"perception of what was just" are concerned.

law n fact,precedent,logic n reasoning

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