'Determining the Ratio Decidendi of a Case'

A.L Goodhart, in 'Determining the Ratio Decidendi of a Case' (1930) 40/2 Yale Law Journal 161 states (at p. 168) that 'It is by his choice of the material facts that the judge creates law'. Critically evaluate Goodhart's statement.

In this essay Goodhart’s statement that “it is by his choice of the material facts that the judge creates law” will be critically examined and shown to be false. An important preliminary investigation is based upon what material facts are themselves. Jowitt’s Legal Dictionary defines material facts as a “fact which is relevant and "in issue" in the proceedings, and consequently a fact that must be proved or disproved by one of the parties to the litigation”. Lopes L.J. explains in Darbyshire v Leigh that the word material is used to describe the facts being “material to the party pleading, be the plaintiff or defendant". Therefore, material facts appear to be facts that are relevant to the outcome of the case, meaning that if different facts are chosen as material it could be seen to change the decision making the concept one of the key parts of the system of judicial precedent. Now that the meaning of material facts has been examined, the focus can now move to Goodhart’s theory and the argument against it.

The Core of Goodhart’s Argument

Dr. Goodhart cited as a leading contemporary writer on precedent believed “the ratio decidendi of a case is determined by ascertaining the facts as treated as material by the judge” and rejects the views of both Professor Montrose and Mr. Simpson, who commented on his first article published on his thesis. To find the ratio decidendi you must first determine the facts treated by the judge as material, and his decision based on them. One of the key points in his theory is that the reasoning or statement of law by the judge is not necessarily a binding principle, but every single case will have a single binding principle determined by the prior stated method. Goodhart cites many cases to justify his belief, one of which is the case of Oliver v Saddler and Co. The facts of the case are fairly immaterial to the discussion at hand but it surrounded the issue of whether a duty to be careful had arisen. Goodhart explains that it is a key illustration of a case that’s decision must be drawn from the material facts as viewed by the judge as no clear legal reasons were given for the decision. A further example cited by Goodhart is Priestley v Fowler which remains law in England despite “the reasons on which Lord Abinger [the Judge in the case] are palpably incorrect”. This demonstrates that, as the case is still part of the system of precedent of England and Wales, the ratio decidendi (or binding legal principle) must be found through other means. Another key point of Goodhart’s thesis is that the emphasis is on the “material facts as seen by the judge, and not on the material facts as seen by anyone else”. This is important as often it can seem unclear which facts are contributing to the decision. Thus under Goodhart’s method, anyone seeking to locate the ratio decidendi within a case must look for which facts the Judge pulls out as contributing to the decision. The effect of this theory of precedent leads to Goodhart’s assertion that there is only one legal principle in each case as if the ratio is just dependant on the material facts, there is only one set of material facts to interpret. 

Precedent Against Goodhart’s Argument

Unfortunately when an exploration of precedent cited by Goodhart’s critics is commenced his theory appears to crumble. Firstly, a key point of Goodhart’s theory to discuss is the idea that each case only has a single legal principle. The case of Behrens is cited (a case involving negligently inflicted psychiatric harm when some elephants ran wild and traumatized a group of performing dwarves) as a precedent in which it is “clear that both ratios will be binding” because the decision is based on more than one line of reasoning. Secondly, the idea that the reasoning of judges is not relevant means that the English system of precedent just involves finding the material facts and ignoring all of the reasons set out by the judges. Ignoring for a moment the illogical nature of top judges spending large amounts of time crafting their reasoning for the decision when the result would be considered mostly relevant, surely this would make any precedent fairly simple to find. Despite this simple methodology for finding any ratio decidendi, Lord Reid in the case of Scruttons Ltd explained how he could not find the ratio from the case of Elder, Dempster because the “decision is very obscure” and even “the extensive and able arguments of counsel… failed to discover it”. The only way it would seem impossible to find a precedent would be if the reasoning was so convoluted and chaotic that it does not make cohesive sense. This shows that the reasoning of the judges must be relevant. Obviously, “not every opinion expressed by a judge forms a judicial precedent” and unfortunately anomalies of precedent will always be present, such as Priestley v Fowler, when a system of precedent draws from cases dating back hundreds of years, but overall it is illogical to conclude that the reasoning of a judge is irrelevant to the ratio decidendi. Thirdly, Goodhart’s idea that we must disregard all legal reasoning and focus merely on the material facts means that if two judges select the same material facts on a given case, this must lead to the same conclusion. This can be seen to be false in the case of Donoghue v Stevenson where Lord Buckmaster dissented from the judgement of the House of Lords but didn't notably cite any facts as immaterial that were used by Lord Atkin. Therefore showing the reasoning as relevant to the judgment. This concept can also be relevant where judges agree on the outcome as they still “may adopt different lines of legal reasoning sometimes invoking different legal principles”.

Simpson, Montrose and the Classical Theory

If Goodhart’s theory is false and it is not only by the material facts that the judge creates law, what is the correct alternative theory which accurately represents the English system of precedent? A.W.B Simpson’s “thesis is that the explicit ratio decidendi of a case must coincide with the rule so logically constructed”. Simpson argues that what he dubs the classic theory means that the ratio is the key principle of law identified by the judge as necessary for his decision. He explains at length that both the Goodhart theory and the classic theory often lead to the same, or similar results on the ratio due to the application of legal principles being closely linked to material facts to which they are being applied. When “a judge states a rule of law, the applicability must depend upon his finding that the material facts of that case correspond precisely to the facts specified in the rule”. Montrose however argues that this is Simpson’s own theory and instead the classical theory is merely “that the ratio decidendi of a case is binding on later judges” and makes no comment on how to formulate this ratio. The classical theory is just the basic concept of what ratio and precedent is: “A precedent, therefore is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large”. Simpson’s description of the classical theory should therefore be referred to as Simpson’s thesis.

Montrose cites Donoghue v Stevenson in explaining that just because a fact is not included in the rule stated by the judge, it does not mean it is immaterial to the outcome of the case, therefore showing a clear difference between legal rules and the sum of the material facts. He believes that where there is no rule stated by the judge, one can be implied from the statement of material facts but we are always looking for this legal principle because that forms the ratio decidendi of the case. Montrose also uses the examples of Cockett v Cockett, Baxter v Baxter and Cowen v Cowen to show that the reasoning of the decision does matter. He says that “In Cockett v Cockett [1950] P. 258, Hodson J. refused to follow a ratio decidendi of the Court of Appeal in Cowen v Cowen [1946] P. 36, because the reasoning in Cowen v Cowen had been shown to be faulty by the House of Lords in Baxter v Baxter [1948] A.C. 274.” This seems in direct contradiction to Goodhart’s earlier argument that many valid precedents rests on the foundation of flawed reasoning or reasoning that cannot be coherently understood. The example used by Simpson of Priestley v Fowler shows this clearly. However it is important to remember how the entire system of precedent functions. Judge’s can only review law when it is called into questions by appellants and therefore, due to restraint, it can never be a perfect system as all of the law cannot be reviewed any time. 

Another clear example of overruling based on flaws in reasoning is the more recent case of R v Jogee. These cases surrounded the “long-established principle of joint enterprise [which] allows defendants to be found guilty of offences committed by another person if they have agreed to act together for a common purpose.” After over thirty years of being a valid legal principle, the Supreme Court overruled the case of Chan Wing Siu but did the court state that this is because the previous select of material facts was false? No, instead they said “The introduction of the principle was based on an incomplete, and in some respects, erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments”. Policy arguments are essentially justifications for laws, so for example, a particular precedent could be defined narrowly to prevent a huge number of cases suddenly coming to court; this is an idea known as the floodgates argument. In this case the policy argument relied upon to justify the law of joint enterprise is the idea that we don’t wish defendants who have engaged in a criminal enterprise which has resulted in someone’s death to escape the consequences of said death. The only way you can create law in line with policy arguments is if you emphase the reasoning behind law, not merely the material facts, and therefore Jogee is an excellent example of the Supreme Court explicitly identifying bad argument and removing it from the common law.

The Disadvantage of Goodhart’s Conception

The analysis of our system of precedent by Goodhart paints a picture of a system that is flawed in comparison to the reality. Not only does the reasoning matter, but the judge’s reasoning should matter. Judicial discretion would be diluted if the only relevant decision was one of the choice of material facts. Judge’s create law to be fair and logical; “it would be irresponsible for judges to act as automata, rigidly applying authorities without regard to consequences”. Goodhart would argue that the choice of material facts is all the discretion a judge would need, and allows them to take into account the direction they wish to take the law in. However, as seen by cases with multiple ratio decidendi or by case such as Donoghue where judges can reach different decisions based on the same facts, Goodhart’s conception is severely limited in comparison to the reality. In addition to this, taking into account the reasoning of judges into the legal principle of a case seems to present our system of common law as a more logical creature. If it is purely based on analogy, judicial precedent could be seen as too mathematical and rigid, whereas using the reasoning within a case shows a build up of ideas leading to a fair and logical conclusion. “The phrase ratio decidendi may be translated as the reason for the decision” and therefore should be treated as such. In Goodhart’s original article he suggests that “our system of precedent becomes meaningless if we say that we will accept his [the judge’s] conclusion but not his view of the facts”. Whilst this statement is inarguably true, our system of precedent will be equally meaningless if we accept the Judge’s view of the facts and the conclusion but avoid accepting the link between the two.

Conclusion

As has been seen, it has become clear from precedent such as R v Jogee and Baxter v Baxter that judges overrule cases due to faulty reasoning not a faulty selection of material facts. Goodhart’s additional assertions that each case always has a legal principle and that there is only one legal principle has also been proven to be false in the cases of Elder, Dempster & Co. Ltd v Paterson, Zochonis & Co. Ltd where there is considered to be no legal principle and the case of Behrens v Bertram Mills Circus contains multiple ratio decidendi within it. These arguments combined show that Goodhart’s theory of precedent, summarised by the statement “it is by his choice of material facts that the judge creates law”, does not fit in line with the reality of the legal system. Whilst any legal academic worth their salt will agree that material facts are certainly directly relevant and inseparable from the legal principle of the case, the judges reasoning also contributes to the ratio decidendi. It has also been seen that this should be considered an advantage as the system that Goodhart describes is one which is inferior in nature to the reality.

------------------------

Bibliography

Cases

Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1, [1957] 2 W.L.R. 404

Chan Wing Siu v R [1985] A.C. 168, [1984] 3 W.L.R. 677

Darbyshire v Leigh [1896] 1 Q.B. 554

Donoghue v Stevenson [1932] A.C. 562

Elder, Dempster & Co. Ltd v Paterson, Zochonis & Co. Ltd [1924] A.C. 522

Elliot v C (A Minor) [1983] 2 All ER 1005

Oliver v Saddler & Co [1929] AC 584

Priestley v Fowler [1837] 150 E.R. 1030

R v Jogee [2016] UKSC 8, [2017] A.C. 387

Scruttons v Midland Silicones Ltd [1962] A.C. 446, [1962] 2 W.L.R. 186

Books

Cross R and Harris J W, Precedent in English Law  (4th edn, 1991)

Gray JC, The Nature and Sources of Law (2d Ed, OUP 1921) 261

Jowitt W and Greenberg D, Jowitt’s Dictionary of English Law (4th Edn, 2015)

McLeod I, Legal Method (9th Edn, OUP 2013) 145

Salmond J, Jurisprudence (7th Ed. 1924) 201

Wheeler J, Essentials of the English Legal System (2nd edn, OUP 2006) 55

Legal Journal Articles

AL Goodhart, 'Determining the Ratio Decidendi of a Case' (1930) 40/2 YLJ161

-- ‘The Ratio Decidendi of a Case’ (1959) 22/2 MLR 117

AWB Simpson, ‘The Ratio Decidendi of a Case’ (1957) 20/3 MLR 413 

JL Montrose, ‘Reasoning, Ratio Decidendi and Denning L.J’ (1954) 17/5 MLR 462

-- ‘The Ratio Decidendi of a Case’ (1957) 20/6 MLR 587

Newspaper Articles

O Bowcott, ‘Joint enterprise law wrongly interpreted for 30 years, court rules’ The Guardian (London, 18 February 2016)