proposed amendment should not be made to the common law rule. The
negative form is a weaker
version of the ratio decidendi because parties can
always try again using new arguments. (There is not a negative form of ratio
decidendi when a court is interpreting law because it generally cannot refuse to
interpret an ambiguous provision that is relevant to the case.)
Thus the ratio decidend is the rule of law on which the decision rests because
it is the reason that the court decided the case one way rather than another.
This rule resolves the legal issues between the parties. It is the part of an earlier
case that a later court must follow or consider when making its decision.
Statements of law, that is of legal rules, in a case that are not the ratio
decidendi are called obiter dicta,
which are things said aside or in passing.
This distinction rests on the fact that the statement of law consisting of the
ratio decidendi resolves the dispute between the parties over a legal issue,
while statement of law that are mere obiter dicta did not do so. This is why
obiter dicta is not binding on subsequent courts but ratio decidendi is.
Stare Decisis
Stare decisis means literally to stand by what has been decided.
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It is a rule
that requires a later court to follow or at least to consider the ratio decidendi
(but not obiter dicta) of an earlier case when making its decision.
Terminology
Now for some more terminology. The plural of ratio decidendi
is rationes
decidendi although the term is not often used. Also, the English form "ratios"
is acceptable. Obiter dicta is already plural; the singular is obiter dictum. Both
terms are used in contracted form –
ratio decidendi
is frequently referred to
just as ratio, while obiter dictum
and obiter dicta are often just obiter, or
dictum or dicta. Here, because the terms are of Latin origin they are in italics,
although they are of such common usage in law that they are frequently written
without italics, that is, in Roman type.
Outline
This chapter proceeds by explaining in turn the twin foundations of precedent,
ratio decidendi and stare decisis. Then it seeks to draw precedent into the
framework that governs this presentation of forming law, that the only
legitimate source of reasoning when forming law is policy. Consequently, if
precedent is to be used in forming law, it is necessary to demonstrate how
precedent can be conceived and used as a derivative of policy.
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In full this maxim is stare decisis et non quieta movere. This means to stand by
what has been decided and not to move what has been set down or set in place.
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