Essays in jurisprudence and the common law goodhart

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And the finding from such an inquiry is true or untrue as a matter of fact. This may be sought at various levels. 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 yields indeterminate results because the "principle" derivable from a case by the Goodhart method of " material facts plus decision " is entirely dependent on the level of generality at which one chooses to describe the facts.

Cross defines "the ratio decidendi of a case" as "any rule of law considered necessary by the Judge for the decision of the case: it is that part of the decision which has binding effect and the facts of the case play a large part in its identification". Now, the word "necessary" is used in the sense of "essential to the working of a judicial system". It seems Cross supports Goodhart. And a binding principle may be sketched as follows.

Here the lower case letters stand for the particular circumstances of the case and capital letters for general properties of facts so that a is an instance of A, etc. In spite of some difficulties Goodhart's definition of ratio decidendi may be taken as a working rule. According to him the ratio is equated with the material facts of the case plus the decision thereon. And the rules for finding the ratio or principle may be summed up as follows: 1 The principle of a case is not found in the reasons given in the opinion. The first is that the facts are "infinitely various", though the material facts are strictly limited.

GOODHART, ARTHUR LEHMAN

Thus the consideration in a contract is a single material fact but the kinds of consideration are unlimited. Secondly , it may happen that the facts, stated by the Judge to be real and material, can be actually non-existent. This is a hypothetical case. It may be pointed out that the whole doctrine of precedent is based on the theory that generally Judges do not make mistakes either of fact or of law.

In other words a decision given per incuriam is an exception that confirms the general rule. A case may be wrongly decided or decided for the wrong reason. As pointed out by Simpson: "The ratio of a case is only binding if it is not inconsistent with statute, or inconsistent with the ratio of another decision 30 ".

Now cases may differ according as they contain a single opinion or several opinions. The determination of the ratio decidendi becomes easier if there is only a single opinion or all the opinions are in agreement. In case the several judgments agree in the result, but differ in the material facts on which they are based the principle is limited to the sum of all the facts considered material by the various judges.

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Thus a case involves facts A, B and C and the defendant is held liable. The first judge finds that fact A is the only material fact, the second that B is material, the third that C is material. The principle of the case is therefore, that on the material facts A, B and C the defendant is liable.

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If, however, two of the three judges had agreed that fact A was the only material one and that the others were immaterial, then the case would be a precedent one on this point, though the third Judge had held that the facts B and C were material ones. This may sound too mechanical and may be seen in the case of Golak Nath v. State of Punjab 31 , as decided by the Indian Supreme Court. They may be reduced to three if the joint dissenting judgments of the Wanchoo block are equated with the separate dissenting judgments of 4 and 5.

Essays In Jurisprudence And The Common Law Goodhart

And the position would be like this: the Subba Rao block of five; the Wanchoo block of five; and the lone judgment of Hidayatullah, J. Six propositions seem to have been laid down by the judgments as follows: a Parliament cannot amend Part III of the Constitution of India so as to "take away or abridge" the fundamental rights; b all amendments made prior to February 27, and affecting fundamental rights other than the "right to property" have full validity; c the effect of the first, fourth and seventh amendments on the "right to property", though made prior to February 27, remains valid and operative as part of the law of India; d the seventh amendment to Article A 2 is similarly valid and operative; e the seventeenth amendment expanding the list of statutes in the Ninth Schedule is similarly valid and operative; and f the impugned land reform legislation of Punjab and Mysore Karnataka is wholly valid.

It is interesting to note how these propositions are established, a is held by the majority 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 held unanimously ; and e is held by ten Judges with Hidayatullah, J.

And the question is how to extract a single ratio out of these judgments. The answer is that the tangle of five separate judgments cannot possibly yield any single ratio. As observed by R. Cross: "The ratio decidendi is a conception peculiarly appropriate to a single judgment. Accordingly, it is probably impossible to avoid something in the nature of arbitrary rules to meet cases in which several judgments are delivered.

The main trouble is that it is impossible to formulate these rules with anything like complete precision. The first approach takes the phrase itself as a sufficient guide to the ratio. Thus in the Golaknath case one is to look for those propositions of law which were necessary and sufficient to base the " declaration " made by the Supreme Court. Article uses the expression "declared" and this is explained by Subba Rao, C. To declare is to announce opinion.


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Indeed the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land.

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On any of these hypotheses, two sets of reasons would be necessary ; and the one wholly immaterial and this might be any one of the three. The Wanchoo block was in a minority in regard to proposition a and this does not mean that its reasons were not "necessary to the decision". However, these reasons can be ignored only on the ground that there was sufficient majority to base the decision without them. But this equally applies to either of the two sets of "majority" reasons.

The result is that the first supposed test of the ratio decidendi would lead to an insoluble choice amongst three pairs of sets of reasons with each pair comprising two different sets of ideas. In practice, of course, the choice is not wholly insoluble.


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It is evident that the reasons of the Wanchoo block are inconsistent with those of either the Subba Rao block or Justice Hidayatullah. But the last two reasonings are not necessarily inconsistent. Their compatibility tends to assume that these two judgments form the source of the ratio. Minister of the Interior 34 , that even if a case has no apparent ratio decidendi , the actual "decision" is "binding". In the narrowest sense of "decision", this gives binding force only to proposition f ; but on a wider meaning of "decision" all the propositions are binding.

The second approach may be formulated in terms of "counting heads". Here one simply adds up the number of Judges giving the propositions. Of course, the search is for a majority of the participating judges. On a strict version of "counting heads" none of the four views would be established, since none had a clear majority. On the looser version p had more support than any of the others and it would be part of the ratio. But this violates Article 5 of the Indian Constitution, requiring that the "judgment" and "opinion" need be "delivered with the concurrence of a majority of the Judges present at the hearing of the case".

As observed by Greenbery S. Insofar as the law is built up by judicial precedent , it is not built up on a counting of heads of all the members of the Court. It is in the reasons of the majority of the Court for the order that the ratio decidendi is to be sought, the reasons of the dissenting Judges being irrelevant for this purpose" 35 In this context, "counting heads" in its looser version would help us only as to the acceptance of "prospective overruling".

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


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  • By equating the ratio with the reasons given by "the majority of the majority", Golaknath is confined to the single judgment delivered by Chief Justice Subba Rao with Justice Hidayatullah concurring with him. Under Article 32 of the Indian Constitution the Common Cause and three retired government servants asked for striking down certain provisions of the Commutation of Pension Rules applicable to civilian and defence pensioners, since they permit the Union of India to recover more than what is paid to the pensioners upon commutation.

    Besides, the petitioners sought for a direction asking the Government to rationalise its scheme of commutation. During the course of the hearing the Union Government agreed to restore the commuted portion of the pension in respect of "all civilian employees at the age of 70 years or after 15 years whichever is later". The facts are: 1 commutation makes available a lump sum to a pensioner; 2 there is the risk factor involved in case the pensioner dies before full recovery; 3 some Governments including State and Union have formulated a year rule for restoration of the commuted pension; and 4 the year formula is not justifiable because it permits recovery of more than the dues.