Generalisation from Facts
Elements of a common law rule are abstractions or generalisations of the
material facts of the case in which the rules was made. Each
material fact is
generalised or abstracted to make an element of the legal rule. Ambiguity arises
because a number of degrees of abstraction or generalisation are possible from
any fact. Consequently courts have a choice as to the degree of generalisation
to which they take the facts to make the rule. In a subsequent case the parties
may dispute the choice made by the first court leading, possibly, to the later
court determining a different degree of generalisation. This is a second means
by which more than one version of a rule can arise. (Note, also, that in a case
there is not just one chosen degree for all facts but a separate degree for each
fact so the opportunities to formulate more than one version of a rule are
plentiful.)
Overall Process
Given these two processes for making a common law rule, once a rule is
formulated then in subsequent cases judges can move up and down the levels
of generalisation. While the choices that form the rule are made when the rule
is first enunciated, a later case can dispute the choices made and disagree with
the formulation of the rule in the earlier case. Rules of which a judge approves
are taken to a high degree of generalisation, so that the rule is read widely and
applied to new situations. Rules of which a judge disapproves will be read
narrowly, or in the technical phrase "read down" or distinguished, and their
operation thereby confined. In this way judges play snakes and ladders with
precedent, going up to a wide generalisation and down to a narrow one. Wide
generalisations are frequently supported by statements that the rule is narrowly
cast in the original case in the light of the facts before it, but when its proper
reason is taken into account it is capable of much wider application. A
narrower reading of the rule is justified on the basis that the earlier formulation
is an unwise and unwarranted generalisation (so that it is “much wider than was
necessary”), and the real scope of the rule should be seen in the light of the
facts of the particular case.
288
By this means two or more versions of a rule
can be formulated.
289
Clarification of Rule
Sometimes the ratio of a case is not stated, or is not clearly stated. In such
cases it must be accepted that there may not be a clear ratio. What the ratio is
will therefore be a matter of speculation or argument, and hence ambiguous
and debatable, so that there may be more than one suggested version of a rule.
288
Scruttons v Midland Silicone Ltd [1962] 1 AC 446 at 476-477, per Lord Reid
289
An illustrative example is provided by Donoghue v Stevenson [1932] AC 562,
578-579.
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