electronically. In fact, electronic publishing is now the main source of case law
even though printed law reports are still published.
Ratio Decidendi and Stare Decisis
Courts create common law in the process of deciding cases by the operation
of two processes.
29
First, courts articulate the new common rule when they
decide the case. To do this, they formulate a rule that fits the facts.
30
This rules
is referred to as the ratio decidendi or ratio for short. This means the reason
for the decision, because the rule that the court formulated is the reason for
determining the case one way rather than another.
Second, the decision that the court makes is treated as precedent so it will
generally be followed in subsequent similar cases.
31
This rule is called stare
decisis, which means literally to stand by what has been decided.
Consequently, the original decision that created the rule affects not only the
parties to the case but all other citizens as well, since they are bound by the
ratio.
32
However, once a rule has been made it is highly likely, in fact virtually
inevitable, that it will be modified over time by extension, qualification or
reformulation as it faces and adapts to new situations.
Retrospecitivity and Prospectivity
This form of law making used for common law raises a problem in that the law
as it affects the parties to the case is made retrospectively, whereas it is made
prospectively for all other users. Thus there is always the risk for parties who
litigate in the common law realm that the law deciding the dispute will not be
clarified or formulated until the case has been decided. Hence common law
justice depends in this instance on predictability –
only if a party can
accurately foresee how a court will respond (an unlikely event) can the law that
affects them and their dealings be ascertainable, as the rule of law requires.
33
Textbooks
Case law can be messy because the rule may not be clearly stated by the court
or becomes enmeshed in the case with the reasoning that created and justified
the new rule. Consequently, in practice the best source of case law is often a
29
Schauer (1995)
30
From the view point of precedent, the rule that the court laid down as it
decided the case is called the ratio decidendi, meaning the reason for deciding the
case.
31
This was required by the principle referred to as stare decisis, which means
literally to stand by what has been decided.
32
In other words a case has both arbitral and law making functions –
see
Lucke (1982-83).
33
Atiyah (1992)
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