Ratio Decidendi, meaning reasoning about the requirements and rationality behind the judgement.

Legal decision making is frequently described as a craft involving special forms of reasoning that are accessible only to those with long experience in applying law. There are two plausible models of common law reasoning, one is the natural model, in which courts resolve disputes by deciding what outcome is best, all things considered. The other is the rule model, in which courts treat rules announced by prior courts as serious rules of decision, and then revert to natural decision making when rules provide no answers. Despite the inescapable flaws serious judicial rules, the rule model of commonlaw decision making has advantages that I have tried to prove that it justify courts in adopting it.

Judgement, as we use the term, is not simply choice of a solution. It entails reasoning, by which we mean conscious, language-based deliberation about reasons for the choice ultimately made. The members of the community have not agreed to flip a coin; they have selected a human authority to translate the values that serve as reasons for action within the community into solutions to practical problems. Given the flaws of human reasoning, the solutions the authority endorses may not be justified in the sense that they are morally correct. But, because the authoritys task is to settle what the communitys values require in practice, its conclusions must be susceptible to justificatory argument. They cannot refer to intuition alone. If the authority chosen to settle controversies could be on the scene whenever a dispute or uncertainty arose, there would be no need for anything more than a series of decisions about what outcome is best in each instance, all things considered. Normally, however, it is neither practical nor desirable for authorities to be constantly on hand; therefore, the community will need a form of settlement that can guide future decision making. The way to accomplish this broader form of settlement is through authoritative rules.

For example, suppose that a rule making authority makes a ratio decidendi that No one shall keep a bear in within 1000 feet of a private residence. The motivating reason for this decision may be to protect the safety and peace of mind of the inhabitants of residential neighbourhoods. At a deeper level, the decision may reflect the assumptions that human interests rank higher than

the interests of bears and that the liberty of property owners to use their property as they wish is subject to a duty not to inflict harm on others. In some situations, the rationale for the decision may not apply with its ordinary force: the bear may be a gentle, declawed former circus animal, kept in a sturdy double cage. But the decision makes no exceptions: its upshot is that bear owners must keep their bears elsewhere, irrespective of the underlying purpose of the rule.8 Rule subjects therefore need not consult the rules purposes in order to determine the what the rule requires of them.

Writers on Jurisprudence have advanced different tests for ascertaining the ratio decidendi . Professor Wambaugh suggests that the ratio decidendi can be discovered by reversing the proposition of law put forward by the court and inquiring whether the decision would be the same notwithstanding the reversal. If it is the same, then the proposition of law is no part of the ratio. Lord Simonds has pointed out the defects in the suggestion. In cases where a judge has given two alternative grounds for a decision, the test of Professor Wambaugh would compel us to deny the case any ratio decidendi because whichever proposition was reversed the decision would still stand on the other.1 Professor Goodhart points out that the ratio decidendi is not the reason for the decision because the reason may be bad and yet the case may come to be an authorirty. The ratio decidendi is also not necessarily the proposition of law stated in the judgement. There may be no rule of law expressly set out or there may be several rules of law set out by different judges as in appellate decisions. The rule may be broader than is necessary to cover the facts of the case before the court Critics point out that the view of Goodhart that a ratio decidendi of a case consists of the decision based on the material facts is superficially true. Its inadequacy becomes evident when it

Larry Alexander & Emily Sherwin, The Rule ofRules: Morality, Rules, and the Dilemmas of Law 136-56 (Durham; London: Duke University Press 2001)

is applied in detail. It rests entirely on the meaning of the phrase material facts. The theory of Goodhart implies that is the deciding judge who decides what are the material facts and those can be discovered by a perusal of judgment. This theory overlook two points. The first point is that it is within the function of the judges in the subsequent cases to say what they choose to regard as the material facts of the earlier case. The second point is that the two persons may agree to a collection of individual facts and yet from different impressions of the group of them as a unit. A case in law is a collection of facts. Where two cases resemble each other sufficiently so that one can be regarded as a precedent for the other rests entirely on the impression which a particular judge forms of the facts of each case as a whole.