of the case to be deployed in future encounters with Provision X in Rule Y is
that Meaning 2 is the legally correct meaning of Provision X.
Problems with Ratio
A lawyer may encounter problems with ratio decidendi. There are four cases
to deal with. These concern difficulty in finding the ratio, the ratio being
confronted by new facts, a need to reappraise a common law rule and
ambiguity in a rule.
Difficulty in Finding the Ratio
In principle it should be a simple matter to discern the ratio decidendi for two
reasons. First, it is clear in principle what the ratio is. When a court is making
common law it is the new rule of law that the court devises. The court devises
the rule by generalising each material fact to some degree to form the elements
of the rule (which is a good clue to finding the ratio when it is not clearly
stated). When a court is interpreting law the ratio is the ruling that one meaning
of the ambiguous provision that gave rise to the case is the legally correct
meaning. Second, the court should state the rule clearly and emphatically in its
judgment.
In practice, however, a court may not state the ratio clearly. For example, the
court may have articulated its reason by referring to the facts and indicating
that these give rise to a cause of action. At the same time it does not articulate
the elements of the rule.
This, it must be stressed is not a difficulty with the concept of ratio decidendi
but constitutes ambiguity in the case. Simply, if the court fails to enunciate
clearly what the ratio is, even though it should do so, a later court has to finish
the job. By not clearly stating the ratio the court has passed the baton on to the
next court that has to grapple with the issue. This later court can only do its
best to divine what the ratio should be. To the extent that it cannot divine the
intention of the original court it has to exercise its own judgment.
Confronting New Facts
In a later case a court may face a set of facts similar in some ways to those
that faced the court that formulated the ratio, but with some potentially
significant differences. It is accepted in common law jurisprudence that the
later court has the right and duty to reconsider the initial formulation of the
ratio. The novel component of the facts begets a reappraisal of the original rule
so it is always salutary and acceptable to reconsider a newly established rule in
the light of novel facts.
367
367
See Chapter 7 Common Law Rules and the discussion of ambiguity of
competing versions of a rule in Chapter 10 Classifying Meanings.
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