Tools of legal methods & legal reasoning

Dr. Tabrez Ahmad,
http://technolexindia.blogspot.in 1

Dr. Tabrez Ahmad,

Agenda

Various Constituents of Legal Literature
Understanding the various parts of the statutes
Relevance of General Clauses Act, 1897 in the
Interpretation of statutes
Various Parts & Sections of Gazette of India
Distinctiveness of ratio decidendi & obiter dicta
Relation of Logic to Laws
Concept of Deductive and Inductive Reasoning
as Tools of Legal Reasoning
Dr. Tabrez Ahmad,

Various Constituents of Legal Literature

 Nature & scope of the primary and secondary
sources of law or other data/information
 Exercise to visit the law library and understanding
the variety of its literatures

Dr. Tabrez Ahmad,

Understanding the various parts of
the statutes
a. Title – the heading on the preliminary part, furnishing the name by
which the act is individually known. It is usually prefixed to the
statute in the brief summary of its contents.
b. Preamble – part of statute explaining the reasons for its enactment
and the objects sought to be accomplished. Usually, it starts with
“whereas”.
c. Enacting clause – part of statute which declares its enactment and
serves to identify it as an act of legislation proceeding from the proper
legislative authority. “Be enacted” is the usual formula used to start
this clause.
d. Body – the main and operative part of the statute containing its
substantive and even procedural provisions. Provisos and exceptions
may also be found.

Dr. Tabrez Ahmad,

e. Repealing Clause - announces the prior statutes or
specific provisions which have been abrogated by reason
of the enactment of the new law.
f. Saving Clause – restriction in a repealing act, which is
intended to save rights, pending proceedings, penalties,
etc. from the annihilation which would result from an
unrestricted repeal.
g. Separability Clause – provides that in the event that
one or more provisions or unconstitutional, the
remaining provisions shall still be in force.
h. Effectivity Clause – announces the effective date of
the law.
Dr. Tabrez Ahmad,

KINDS OF STATUTES
1. General Law – affects the community at large. That which
affects all people of the state or all of a particular class.
2. Special Law – designed for a particular purpose, or limited
in range or confined to a prescribed field of action on
operation.
3. Local Law – relates or operates over a particular locality
instead of over the whole territory of the state.
4. Public Law – a general classification of law, consisting
generally of constitutional, administrative, criminal, and
international law, concerned with the organization of the
state, the relations between the state and the people who
compose it, the responsibilities of public officers of the state,
to each other, and to private persons, and the relations of
state to one another. Public law may be general, local or
special law.

Dr. Tabrez Ahmad,

5. Private Law – defines, regulates, enforces and administers
relationships among individuals, associations and
corporations.
6. Remedial Statute – providing means or method whereby
causes of action may be affectuated, wrongs redressed and
relief obtained.
7. Curative Statute – a form of retrospective legislation
which reaches back into the past to operate upon past events,
acts or transactions in order to correct errors and
irregularities and to render valid and effective many
attempted acts which would otherwise be ineffective for the
purpose intended.
8. Penal Statute – defines criminal offenses specify
corresponding fines and punishments.
Dr. Tabrez Ahmad,

9. Prospective Law – applicable only to cases which shall
arise after itsenactment.
10. Retrospective Law – looks backward or contemplates
the past; one
which is made to affect acts or facts occurring, or rights
occurring, before it came into force.
11. Affirmative Statute – directs the doing of an act, or
declares what shall be done in contrast to a negative
statute which is one that prohibits the things from being
done, or declares what shall not be done.
12. Mandatory Statutes – generic term describing
statutes which require and not merely permit a course of
action.
Dr. Tabrez Ahmad,

REPEALS OF STATUTE MAY BE EXPRESSED OR IMPLIED
Express repeal – is the abrogation or annulling of a previously existing
law by the enactment of a subsequent statute which declares that the
former law shall be revoked and abrogated.
Implied repeal – when a later statute contains provisions so contrary to
irreconcilable with those of the earlier law that only one of the two
statutes can stand in force. The repeal of a penal law deprives the court of
jurisdiction to punish persons charged with a violation of the old penal
law prior to its repeal.
Only a law can repeal a law.
The intention to repeal must be clear and manifest, otherwise, at least, as
a general rule, the later act is to be construed as a continuation of, and not
a substitute for, the first act. Two (2) categories of repeal by implication:
1. Where provision in the two acts on the same subject matter are in an
irreconcilable conflict;
2. If the later act covers the whole subject of the earlier one and is
clearly intended as a substitute – to be a complete and perfect system in
itself.

Dr. Tabrez Ahmad,

Relevance of General Clauses Act, 1897 in
the Interpretation of statutes

Dr. Tabrez Ahmad,

Various Parts & Sections of Gazette of India
Part I Section 1 Notification relating to Non-Statutory Rules, Regulations, Orders and
Resolutions issued by the Ministries of the Govt. of India (other than
the Ministry of Defence) and by the Supreme Court.

Para I Section 2 Notification regarding Appointments, Promotions, Leave etc. of Govt.
officers issued by the Ministry of the Defence) and by the Supreme
Court of India Notifications relating to Resolutions and Non-Statutory

Part I Section 3 Notifications relating to non-statutory rules regulations issued by the
Ministry of Defence.

Part I Section 4 Notifications regarding Appointments, promotions, leave etc. of
Government Officers issued by the Ministry of Defence.

Dr. Tabrez Ahmad,

Part II Section 1 Authoritative taxes in Hindi language of Acts, Ordinances and
A (Hindi) Regulations.

Part II Section 2 Bills and Reports of the Select Committee of Lok Sabha

Part II Section 3 General Statutory Rules (including Orders, By laws etc. of general
Sub Section (i) character) issued by the Ministries of the Govt. of India (other than the
Ministry of Defence) and by Central Authoritative (other than the
Administration of Union Territories)

Part II Section 3 Statutory Orders and Notifications issued by the Ministries of the
Sub Section (ii) Government of India (other than the Ministry of Defence) and the
Central Authorities (other than the Administration of Union Territories).

Part II Section 3 Authoritative taxes in Hindi (other than such taxes, published in
Sub Section (iii) section 3 or section 4 of the Gazette of India of General Statutory Rules
and Statutory Orders (including Bye-laws of a general character)
issued by the Ministries including Ministry of Defence and by general
authorities (other than Administrative of U.T.)

Part II Section 4 Statutory Rules & orders by the Ministry of Defence

Dr. Tabrez Ahmad,

Part III Notifications issued by the High Courts, the Comptroller
Section 1 and Auditor General, Union Public Service Commission
the Indian Railways and by attached and subordinate
offices of the Government of India

Part III Notices & Notifications issued by the Patent Office
Section 2 Calcutta

Part III Notifications issued by or under the authority of Chief
Section 3 Commissioner

Part III Miscellaneous Notifications including Notifications,
Section 4 Orders Advertisements and Notices issued by Statutory
Bodies

Dr. Tabrez Ahmad,

Part IV Advertisement and Notices issued by the
private individuals and private bodies.

Dr. Tabrez Ahmad,

The Ratio Decidendi of a case
 What is "law" in a precedent is its ruling or ratio decidendi
in respect of instant and future litigants. And knowing the
law in this context means knowing how to extract the
rationes decidendi from cases. The expression, ratio
decidendi is "the reason for (or of) deciding". The word
"decision" has four shades of meaning. First, it may mean
the ultimate order made by the Court to determine the case
and on the strength of this one party or another may seek
execution.

Dr. Tabrez Ahmad,

 Second, it may refer to the whole case. Third, it may mean
the determination of a particular issue. Fourth, it may refer
loosely to the reason for reaching such a determination.
And G.W. Paton prefers the third meaning, that is, the
decision of any issue in the course of judicial proceedings.
In this context, "order" refers to the final order made by the
court and binding the parties to the proceedings, while
"judgment" refers to the reasons given by the judgment to
explain and justify its order.

Dr. Tabrez Ahmad,

 The expression ratio decidendi is normally used to refer to
some binding rule found in decided cases, which a later
court cannot generally question. And a defining technique
is to elucidate the judicial power to make binding rules and
a rule made within the ambit of this power will constitute
the ratio of the case. There is thus a distinction between
the rule-making of Judges which is intra vires a power to
make binding rules and the rule-making of Judges which is
ultra vires this power. But there is an important limitation
on the rule-making power vested in Judges.

Dr. Tabrez Ahmad,

 And this is the principle which denies them the power to
make binding rules unless they are relevant to the
determination of actual litigation before the court. In the
wake of this connection came a corollary, namely, a
principle reducing the importance of communications of
the law delivered by Judges, either accidentally or
deliberately upon hypothetical issues. As a result obiter
dicta grew up — they are in a sense ultra vires enunciations
of law. The distinction between ratio decidendi and obiter
dictum is in essence a distinction between relevance and
irrelevance.

Dr. Tabrez Ahmad,

 A rule-making power may have two limitations, formal or substantial.
They may restrict the way in which rules are made and they may also
restrict what rules are made. And a Judge's power is subject to both
kinds of limitation. However, ratio deddendi has only a formal
limitation, namely, that a rule acted upon in court can rank as a
binding rule. Of course, there may be an exception, for example, the
per incuriam rule. The fact that the rule has been acted upon is the
hallmark of relevance. And this is expressed in a variety of ways, e.g.
"the rule applied", "the reason for the decision", "the basis of the
decision".

Dr. Tabrez Ahmad,

 Here one may notice the difference between the rule-
making procedure of Parliament and the case-law. The
former operates on a text, while the Judges in case-law do
not draft the rules to act upon. And Judges decide cases by
acting upon rules. The minimum required for a Judge to act
upon a legal rule consists of three things: (a) he should
have a rule in mind while deciding to act, without a precise
formulation of a rule; (b) he decides that the rule is
applicable, that is, some fact or set of facts should be
subsumed under the rule; and

Dr. Tabrez Ahmad,

 (c) his conduct should conform to the prescriptions of the
rule. In the judicial process the Judge should show that he
is acting upon a rule. It should be remembered that case-
law rules are incomplete: Judges do never claim
completeness for the statements of rules and exceptions.
The reason why a Judge enunciates the rule of law to act
upon is that the rule justifies his action. But this must be a
rule acceptable as a rule of the legal system.

Dr. Tabrez Ahmad,

 In Osborne v. Rowlett, Sir George Jessel says: "The
only thing in a Judge's decision binding as an
authority upon a subsequent Judge is the principle
upon which the case was decided." This brings out
the distinction between the binding nature of a
decision on a particular issue and the binding
nature of a principle "upon which the case was
decided". The former is precise, while the latter is
not.

Dr. Tabrez Ahmad,

 Ordinarily such precise decisions are supported by a course
of reasoning which establishes a general principle of law
used by the court to justify its decisions. This principle is
called the ratio decidendi of the decision. And its binding
nature is of a different kind. Unfortunately Paton uses
"proposition" in place of "principle": "A course of reasoning
establishes a general proposition of law (for the court) to
justify its decision." And this is not correct.

Dr. Tabrez Ahmad,

 The distinction between a "principle" and a "proposition"
may be likened to that between a "propositional function"
and a "proposition". In the words of Bertrand Russell: "A
propositional function is any expression containing an
undetermined constituent or several undetermined
constituents, and becoming a proposition as soon as the
undetermined constituents are determined. If I say 'X is a
man' that is a propositional function."

Dr. Tabrez Ahmad,

 If we substitute "Robinson" for X in "X is a man", then "Robinson is a
man" expresses a true proposition. Russell explains this in his Principia
Mathematica thus: "By a 'propositional function' we mean something
which contains a variable X, and expresses a proposition as soon as a
value is assigned to X. That is to say, it differs from a proposition solely
by the fact that it is ambiguous: it contains a variable of which the value
is unassigned. The values of the function are propositions." Since
propositions of law are akin to rules of law, Ronald Dworkin
distinguishes between "principles" and "rules" in two ways. First,
principles differ from rules

Dr. Tabrez Ahmad,

 in the character of the direction they give — while
rules are applicable in an all-or-nothing fashion,
principles State "a reason that argues in one direction
but (do) not necessitate a particular decision". Second,
principles have a dimension of weight or importance
which rules do not.

Dr. Tabrez Ahmad,

 No Judge ever lays down any general proposition of law and
therefore one has to discover or abstract a ratio or principle
from the facts of the case decided. Hence with the
introduction of new facts, an extension of the ratio or
principle takes place, though the authority of the previous
cases is not thereby disavowed. And in this way the case-
law has developed from precedent to precedent so as to
keep pace with the changing needs of society. Markby
realised this flexibility while speaking about the "judiciary
law".

Dr. Tabrez Ahmad,

 He said: "Were the judges in England compelled, as in Italy,
France and Spain to State separately and fully what French
lawyers call the motives, and Spanish lawyers the points of
their decisions — their findings in fact and the rules of law
— there would be a complete revolution in the history of
English case-law. The law being stated in distinct
propositions, altogether separate from the facts, would be
easily ascertained. This, coupled with our notions as to the
authority of prior

Dr. Tabrez Ahmad,

 decisions, would render a conflict almost impossible. The
law would soon become clear and precise enough; but so
far as judicial decision was concerned, it would become
much more rigid. It is because English Judges are absolved
from the necessity of stating general propositions of law
and because, even when these are stated, they are always
read as being qualified by the circumstances under which
they are applied, that our law remains bulky and uncertain,
but has also, in spite of our respect for precedent, remained
for a long period flexible."

Dr. Tabrez Ahmad,

The sources do not provide a neatly ordered legal framework
under which one particular fact situation is covered by one
particular source of law. Rather the sources frequently
overlap and on occasions conflict. Different case law
sources, may be potentially applicable to the same fact
situation. Statutes may also overlap in a particular context.
There may occasionally be a conflict between their
provisions or the way they have been interpreted. Both
statutory and case law sources may overlap, it being left to
the courts to resolve their competing claims to be applied
to the situation in question.

Dr. Tabrez Ahmad,

Both the learned authors, on reaching this point of safety,
stop. Having explained to the student that it is necessary to
find the ratio decidendi of the case, they make no further
attempt to state any rules by which it can be determined. It
is true that Salmond says that we must distinguish between
the concrete decision and the abstract ratio decidendi, and
gray states that the opinion must be a necessary one, but
these are only vague generalisations.

Dr. Tabrez Ahmad,

Phrase ratio decidendi is one of the most misleading
expression of English law, for the reason which the
judge gives for his decision is never the binding
part of the precedent. The logic of the argument,
the analysis of the prior cases, the statement of the
historical background may all be demonstrably
incorrect in a judgment, but a case remains a
precedent nevertheless.

Dr. Tabrez Ahmad,

It would not be difficult to cite a large number of
leading cases, both ancient and modern, in which
one or more of the reasons given for the decision
can be proved to be wrong, but in spite of this,
these cases contain valid and definite principles
which are as binding as if the reasons on which
they are based were correct.

Dr. Tabrez Ahmad,

It may be laid down as a general rule that that part
alone of a decision of a court of law is binding
upon courts of co-ordinate jurisdiction and
inferior courts which consists of enunciation of the
reason or principle upon which the question
before the court has really been determined. This
underlying principle which forms the only
authoritative element of a precedent is often
termed the ratio decidendi .

Dr. Tabrez Ahmad,

Professor Morgan of the Harvard Law School, in his
valuable book The study of Law says: Those
portion of the opinion setting forth the rules of law
applied by the court, the application of which was
required for the determination of the issues
presented, are to be considered as decision and as
primary authority in later cases in the same
jurisdiction.

Dr. Tabrez Ahmad,

Thus, a case may be presented, involving an
important principle of law, although the court has
given judgment without delivering an opinion. At
the present time, we rarely find a case of any
importance in which there is not a statement of
the reasons on which the judgment is based,
although occasionally an appellate court will
affirm without opinion a case which involves an
interesting point.

Dr. Tabrez Ahmad,

Deductive Versus Inductive
Forms of Reasoning

Dr. Tabrez Ahmad,

Two basic categories
of human reasoning
 Deduction: reasoning from general premises, which are
known or presumed to be known, to more specific, certain
conclusions.
 Induction: reasoning from specific cases to more general,
but uncertain, conclusions.

 Both deductive and inductive arguments occur frequently
and naturally…both forms of reasoning can be equally
compelling and persuasive, and neither form is preferred
over the other (Hollihan & Baske, 1994).

Dr. Tabrez Ahmad,

Deduction Vs. Induction

Deduction: Induction
 commonly associated  commonly known as
with “formal logic.” “informal logic,” or
 involves reasoning from “everyday argument”
known premises, or  involves drawing
premises presumed to uncertain inferences,
be true, to a certain based on probabalistic
conclusion. reasoning.
 the conclusions reached  the conclusions reached
are certain, inevitable, are probable,
inescapable. reasonable, plausible,
believable.

Dr. Tabrez Ahmad,

Deductive Versus Inductive Reasoning

Deduction Induction
 It is the form or structure  By contrast, the form or
of a deductive argument structure of an inductive
that determines its validity argument has little to do with
 the fundamental property of its perceived believability or
a valid, deductive argument credibility, apart from making
is that if the premises are
true, then the conclusion the argument seem more clear
necessarily follows. or more well-organized.
 The conclusion is said to be  The receiver (or a 3rd party)
“entailed” in, or contained determines the worth of an
in, the premises. inductive argument
 example: use of DNA
testing to establish
paternity

Dr. Tabrez Ahmad,

Inductive or deductive reasoning?
 A sample of fifty motorists  The Law of the Sea treaty
who were stopped by the states that any vessel
CHP at a sobriety beyond a 12 mile limit is in
checkpoint on a Saturday international waters. The
treaty also states that any
at midnight revealed that vessel in international
one in four drivers were waters cannot be legally
either uninsured, stopped or boarded.
intoxicated, or both. Therefore, when the U.S.
Thus, if you get involved Coast Guard intercepts
in an accident on the boats coming from Cuba or
freeway there is a 25% Haiti more than 12 miles
chance the other motorist from the U.S. coast, it is
violating the Law of the
will be drunk or Sea.
uninsured.

Dr. Tabrez Ahmad,

Sample Deductive and Inductive Arguments

Example of Example of
Deduction Induction
 major premise: All  Boss to employee: “
tortoises are Bhaskar has a tattoo of
vegetarians an anchor on his arm.
 minor premise: He probably served in
Shantanu is a the Navy.”
tortoise
 conclusion:
Therefore,
Shantanu is a
vegetarian

Dr. Tabrez Ahmad,

sample “Venn diagram”
of a deductive argument

vegetarian animals tortoises
All tortoises Thus,
fall in the Shantanu must
circle of be a vegetarian
animals that
are
vegetarians

Shantanu falls into the
circle of animals that are
tortoises
Dr. Tabrez Ahmad, Shantanu

Other types of
deductive arguments
 Suppose every place in
the world that people A. all wooden houses are
live is represented by the found in Switzerland
blue space inside the B. Everyone lives in a
rectangle. Suppose the wooden house
long pink oval C. Some Switzerlandians
represents all the live in wooden houses
wooden houses in the D. No one lives in
world. And, suppose the Switzerland
green circle represents
Switzerland. The most
logical conclusion one
can draw from the figure
is:

Dr. Tabrez Ahmad,

Other types of
deductive arguments
 Suppose the following
statements are all true:
A. Person L is taller than J
 Person L is shorter
than person X B. Person X is taller than J
 Person Y is shorter C. Person J is taller than L
than person L D. Person J is taller than M
 Person M is shorter E. Person M is taller than Y
than person Y
 What additional piece
of information would be
required to conclude
that “Person Y is shorter Solution: Answer C
than Person J”?
M<Y<L<X
So, if J is taller than L,
Y must be shorter than J
Dr. Tabrez Ahmad,

Other types of
deductive arguments
A mother wants to order Which combination of
one large pizza, with toppings should she
exactly 5 toppings for her select if she is to satisfy
three picky children. She all three children’s
can choose from 7 combined demands?
toppings; cheese, A. pineapple, onions,
cheese, mushrooms,
mushrooms, olives, ham, sausage
sausage, onions, and B. cheese, sausage, ham,
pineapple. olives, pineapple
 Fifi says there has to be C. cheese, mushrooms,
pineapple ham, onions, pineapple
 Mona says there cannot be D. sausage, mushrooms,
any olives onions, cheese, and
ham.
 Rex says that if there is
going to be sausage, then
there has to be ham too.
Dr. Tabrez Ahmad,

the five topping solution
chee mushro oliv ham sausag onio pineapp
se om e e n le

Fifi Yes

Mona No

Rex then if
ham sausa
ge

Note: the statement “if sausage, then ham” doesn’t
imply “If ham then sausage.” The obverse doesn’t
necessarily follow. Dr. Tabrez Ahmad,
http://technolexindia.blogspot.in

Deduction Versus Induction
---continued
 Deductive reasoning  Inductive reasoning
is either “valid” or
“invalid.” A deductive enjoys a wide range of
argument can’t be “sort probability; it can be
of” valid. plausible, possible,
reasonable, credible, etc.
 If the reasoning
employed in an  the inferences drawn may
argument is valid and be placed on a continuum
the argument’s ranging from cogent at
premises are true, then
the argument is said to one end to fallacious at
be sound. the other.
valid reasoning +
true premises =
sound argument
fallacious cogent

Dr. Tabrez Ahmad,

Deduction Versus Induction
--still more
 Deductive reasoning is  Inductive reasoning is
commonly found in the found in the courtroom,
natural sciences or “hard” the boardroom, the
sciences, less so in classroom, and throughout
everyday arguments
the media
 Occasionally, everyday
arguments do involve  Most, but not all everyday
deductive reasoning: arguments are based on
Example: “Two or more induction
persons are required to  Examples: The
drive in the diamond “reasonable person”
lane. You don’t have two standard in civil law, and
or more persons.
Therefore you may not the “beyond a reasonable
drive in the diamond doubt” standard in
lane” criminal law

Dr. Tabrez Ahmad,

Legal Reasoning
Concepts of law are more likely chess pieces. They
can be used to produced certain results but the
players have a choice as to the move. Similarly,
lawyers and judges often have a choice as to how
they will move the concepts. The way in which
they are moved and are applied to facts involves a
process of reasoning.

Dr. Tabrez Ahmad,

Legal reasoning and logic
Lawyers are often thought of as having logical minds. This
gives the impression that legal reasoning itself is or should
be governed by logic.
When we refer to a logic we are often thinking of the
deductive form of argument known as the syllogism
(drawing a conclusion from two statements).
All living things are mortal
Katrina Kaif and Salman Khan are living things
Therefore Katrina and Salman are mortal

Dr. Tabrez Ahmad,

Types of reasoning
There are two types of reasoning

1. Deductive reasoning
2. Inductive reasoning

Deductive reasoning

A lawyer advising his client as to the application of a detailed statutory provision will employ
deductive type of reasoning.
The statute is a major premise, the lawyer identifies his case as falling within the statute and
then deduces as the conclusion the way in which it applies to his client.
Deductive logic is only applicable once a clear major premise has been established.

Dr. Tabrez Ahmad,

Inductive reasoning
If the source is not a statute but case law, no major premise is likely to be
clear from just one case decision. Instead, the lawyer will have to
examine several cases to find a major premise which underlies them all.
He will have to reason from particular case decisions to a general
proposition.This form of reasoning is often referred to as inductive
logic as opposed to deductive logic where the reasoning is from the
general proposition to the particular conclusion in the case itself.
Judges too make use of inductive and deductive logic when deciding
cases.

Dr. Tabrez Ahmad,

Cases which involve a question of what law should be applied come
before the courts precisely because there is no purely logical answer to
the question. Instead there is a choice which, according to Lord
Diplock, is exercised by making a policy decision. But how does the
judge make this decision? Obviously will be influenced by the rhetoric
of the parties counsel, by the way in which they have framed the issue
and the analogies they have suggested. He may have his own personal
views, although on legal matters these are likely to have become “
institutionalised” over the years of practice before the courts. Perhaps
the most important influence on his choice is the knowledge that he
will have to justify his decision in a reasoned judgment.

Dr. Tabrez Ahmad,

Legal Reasoning and Justification
Professor Neil Mac Cormick in his book Legal Raeasoning
and Legal Theory, suggests that two factors in particular
may be considered by judge when justifying his decision.
The first is the extent to which a proposed decision will
cohere with existing principles and authorities: the greater
the inconsistency with the existing legal framework that
will result from a proposed decision, the less likely it is to
be adopted.

Dr. Tabrez Ahmad,

 The second concerns the broader consequences of
the decision for potential litigants, the legal
system and indeed the role of law in society.
Judges may refer to common sense, the supposed
view of the common man or they may refer to
notions of justice and fairness.

Dr. Tabrez Ahmad,

 Some critics see some times arguments as merely playing
with language. They argue that if judgments are
“deconstructed by unravelling the linguistic devices, the
emptiness of legal reasoning will be revealed. This view,
often associated with the movement known as “ critical
legal studies,” challenges conventional thinking but to
some extent depends upon setting up an easy target: if
legal reasoning purported to provide a scientific route to
the truth one would have more sympathy with the critics,
but that is not its nature.

Dr. Tabrez Ahmad,

Rather as Professor John Wisdom has put it, legal reasoning
is “ not a chain of demonstrative reasoning. It is a
presenting and re-presenting of those features of those
cases which severally co-operate in favour of the conclusion
…… The reasons are like the legs of a chair not the links of a
chain .”
It is important to realise that a judge can only properly take
into account those considerations which can be adequately
argued before a court of law.

Dr. Tabrez Ahmad,

How to determine ratio of a case

Dr. Tabrez Ahmad,

 Since the ratio decidendi of a case has the nature of a
propositional function, it is variable and becomes elusive.
And jurists have even been in search of it. Any legal system
using precedent has to consider the way in which they are
relevant. To this end the relevancy is found in the fact that
decisions involve some principle of general application. But
the question is: how is this to be ascertained? Classical
theory has regarded the binding part of a decision as the
legal principle formulated.

Dr. Tabrez Ahmad,

 him the ratio decidendi is controlled by the relation
between "the material facts" of the case and the holding on
these facts. While the ratio consists of the very reasoning
necessary to explain the holding on "the material facts"
found by the precedent judge, he suggests that the better
way to approach the problem is to elucidate the ratio of a
case from the facts themselves rather than from the
principle enunciated by the Cour.

Dr. Tabrez Ahmad,

 Julius Stone challenges Goodhart and distinguishes between "descriptive" and
"prescriptive" ratio decidendi to conclude that facts may be of many possible
"levels of generalisation". Descriptively the phrase imports an explanation of
the court's reasoning to its conclusion based on sociological, historical and
even psychological inquiry. And the finding from such an inquiry is true or
untrue as a matter of fact. This may be sought at various levels. Prescriptively
the phrase refers to a normative judgment, requiring us to choose a particular,
that is, binding ratio decidendi. In other words, Stone's argument is that
Goodhart's theory yields indeterminate results because the "principle"
derivable from a case by the Goodhart method of "material facts plus decision"
is entirely dependent on the level of generality at which one chooses to describe
the facts.

Dr. Tabrez Ahmad,

 In this context R. Cross defines "the ratio decidendi of a
case" as "any rule of law considered necessary by the Judge
for the decision of the case: it is that part of the decision
which has binding effect and the facts of the case play a
large part in its identification". Hence, all other statements
of law are obiter dicta. Now, the word "necessary" is used in
the sense of "essential to the working of a judicial system".
It seems Cross supports Goodhart. And a binding principle
may be sketched as follows.

Dr. Tabrez Ahmad,

 Where the facts are a, b, c, d, e, g and a reported
decision is P, the decision is said to be based on the
rule that whenever A, B, C then X should be
decided. Here the lower case letters stand for the
particular circumstances of the case and capital
letters for general properties of facts so that a is an
instance of A, etc. Thus the ruling in P can be
summarised as:
 P: a, b, c, d, e, g/A.B.C X.

Dr. Tabrez Ahmad,

 The novel case, N, is a case of a1, b1, c1, 1, (i.e. not — e1), f1 and it is
governed by P, which is binding on the court. Now, in case the court
decides to follow P, its ruling will be:
 N: a1, b1, c1, d1, 1, f1, /A.B.C X.
 In spite of some difficulties Goodhart's definition of ratio decidendi
may be taken as a working rule. According to him the ratio is equated
with the material facts of the case plus the decision thereon. And the
rules for finding the ratio or principle may be summed up as follows:
 (1) The principle of a case is not found in the reasons given in the
opinion.

Dr. Tabrez Ahmad,

 (2) The principle is not found in the rule of law set forth as the opinion.
 (3) The principle is not necessarily found by a consideration of all the
ascertainable facts of the case, and the Judge's decision.
 (4) The principle of the case is found by taking account
 (a) of the facts treated by the Judge as material, and
 (b) his decision as based on them.
 (5) In finding the principle it is also necessary to establish what facts
were held to be immaterial by the Judge, for the principle may depend
as much on exclusion as it does on inclusion.

Dr. Tabrez Ahmad,

 Goodhart himself mentions that his definition suffers from two infirmities.
The first is that the facts are "infinitely various", though the material facts are
strictly limited. Thus the consideration in a contract is a single material fact but
the kinds of consideration are unlimited. Secondly, it may happen that the
facts, stated by the Judge to be real and material, can be actually non-existent.
This is a hypothetical case. It may be pointed out that the whole doctrine of
precedent is based on the theory that generally Judges do not make mistakes
either of fact or of law. In other words a decision given per incuriam is an
exception that confirms the general rule. A case may be wrongly decided or
decided for the wrong reason. As pointed out by Simpson: "The ratio of a case
is only binding if it is not inconsistent with statute, or inconsistent with the
ratio of another decision.

Dr. Tabrez Ahmad,

 Now cases may differ according as they contain a single opinion or several
opinions. The determination of the ratio decidendi becomes easier if there is
only a single opinion or all the opinions are in agreement. In case the several
judgments agree in the result, but differ in the material facts on which they are
based the principle is limited to the sum of all the facts considered material by
the various judges. Thus a case involves facts A, B and C and the defendant is
held liable. The first judge finds that fact A is the only material fact, the second
that B is material, the third that C is material. The principle of the case is
therefore, that on the material facts A, B and C the defendant is liable. If,
however, two of the three judges had agreed that fact A was the only material
one and that the others were immaterial, then the case would be a precedent
one on this point, though the third Judge had held that the facts B and C were
material ones.

Dr. Tabrez Ahmad,

 This may sound too mechanical and may be seen in the case of Golak
Nath v. State of Punjab, as decided by the Indian Supreme Court.
 Five judgments were delivered in the Golaknath case by (1) the Subba
Rao block of Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ.;
(2) Hidayatullah, J.; (3) the Wanchoo block of Wanchoo, Bharagava
and Mitter, JJ.; (4) Bachawat, J; and (5) Ramaswami, J. They may be
reduced to three if the joint dissenting judgments of the Wanchoo
block are equated with the separate dissenting judgments of (4) and
(5). And the position would be like this: the Subba Rao block of five;
the Wanchoo block of five; and the lone judgment of Hidayatullah, J.
Six propositions seem to have been laid down by the judgments as
follows:

Dr. Tabrez Ahmad,

 (a) Parliament cannot amend Part III of the Constitution of India so as
to "take away or abridge" the fundamental rights; (b) all amendments
made prior to February 27, 1967 and affecting fundamental rights other
than the "right to property" have full validity; (c) the effect of the first,
fourth and seventh amendments on the "right to property", though
made prior to February 27, 1967 remains valid and operative as part of
the law of India; (d) the seventh amendment to Article 31-A(2) is
similarly valid and operative; (e) the seventeenth amendment
expanding the list of statutes in the Ninth Schedule is similarly valid
and operative; and

Dr. Tabrez Ahmad,

 (f) the impugned land reform legislation of Punjab and Mysore
(Karnataka) is wholly valid. It is interesting to note how these
propositions are established, (a) is held by the majority comprising (1)
and (2); (b) is held by (2) only, though it necessarily follows from the
view of the Wanchoo block comprising (3), (4) and (5); (c), (d) and (f)
are held unanimously; and (e) is held by ten Judges with Hidayatullah,
J. dissenting. And the question is how to extract a single ratio out of
these judgments. The answer is that the tangle of five separate
judgments cannot possibly yield any single ratio. As observed by R.
Cross:

Dr. Tabrez Ahmad,

 "The ratio decidendi is a conception peculiarly
appropriate to a single judgment. Accordingly, it is
probably impossible to avoid something in the
nature of arbitrary rules to meet cases in which
several judgments are delivered. The main trouble
is that it is impossible to formulate these rules
with anything like complete precision."

Dr. Tabrez Ahmad,

 Three approaches may be considered in this connection. The first
approach takes the phrase itself as a sufficient guide to the ratio. Thus
in the Golaknath case one is to look for those propositions of law which
were necessary and sufficient to base the "declaration" made by the
Supreme Court. Article 141 uses the expression "declared" and this is
explained by Subba Rao, C.J. thus: "The expression 'declared' is wider
than the words 'found or made'. To declare is to announce opinion.
Indeed the latter involves the process, while the former expresses
result. Interpretation, ascertainment and evolution are parts of the
process, while that interpreted, ascertained or evolved is declared as
law. The law declared by the Supreme Court is the law of the land."

Dr. Tabrez Ahmad,

 And what was necessary for the decision was the conjunction of the
reasons given either (i) by the 5-man Subba Rao block and the 5-man
Wanchoo block; or (ii) by the 5-man Subba Rao block and by Justice
Hidayatullah; or (iii) by the 5-man Wanchoo block and by Justice
Hidayatullah. On any of these hypotheses, two sets of reasons would
be necessary; and the one wholly immaterial and this might be any one
of the three. The Wanchoo block was in a minority in regard to
proposition (a) and this does not mean that its reasons were not
"necessary to the decision". However, these reasons can be ignored only
on the ground that there was sufficient majority to base the decision
without them. But this equally applies to either of the two sets of
"majority" reasons.

Dr. Tabrez Ahmad,

 The result is that the first supposed test of the ratio decidendi would lead to an
insoluble choice amongst three pairs of sets of reasons with each pair
comprising two different sets of ideas. In practice, of course, the choice is not
wholly insoluble. It is evident that the reasons of the Wanchoo block are
inconsistent with those of either the Subba Rao block or Justice Hidayatullah.
But the last two reasonings are not necessarily inconsistent. Their compatibility
tends to assume that these two judgments form the source of the ratio. Here
one may hold with Chief Justice Centlivres in the South African case of Fellner
v. Minister of the Interior, that even if a case has no apparent ratio decidendi,
the actual "decision" is "binding". In the narrowest sense of "decision", this
gives binding force only to proposition (f); but on a wider meaning of
"decision" all the propositions are binding.

Dr. Tabrez Ahmad,

 The second approach may be formulated in terms of "counting heads".
Here one simply adds up the number of Judges giving the propositions.
Of course, the search is for a majority of the participating judges. Let us
take a case with four views, p, q, r and s and in a court of 11 Judges — p
is supported by 4 judges, q and r by 3 each, and s, by the remaining
one. On a strict version of "counting heads" none of the four views
would be established, since none had a clear majority. On the looser
version p had more support than any of the others and it would be part
of the ratio. But this violates Article 145(5) of the Indian Constitution,
requiring that the "judgment" and "opinion" need be "delivered with
the concurrence of a majority of the Judges present at the hearing of
the case".

Dr. Tabrez Ahmad,

 As observed by Greenbery S.A. in the Fellner case: "The object of the
enquiry is to ascertain what is the ratio decidendi and not what are the
opinions of Judges. Insofar as the law is built up by judicial
(precedent), it is not built up on a counting of heads of all the members
of the Court. It is in the reasons of the majority of the Court for the
order that the ratio decidendi is to be sought, the reasons of the
dissenting Judges being irrelevant for this purpose" In this context,
"counting heads" in its looser version would help us only as to the
acceptance of "prospective overruling".

Dr. Tabrez Ahmad,

 The third approach may be termed "the majority of the
majority". If the Golaknath decision is proposition (a), it is
supported by 6 of the 11 Judges and 5 support it for
identical reasons. By equating the ratio with the reasons
given by "the majority of the majority", Golaknath is
confined to the single judgment delivered by Chief Justice
Subba Rao with Justice Hidayatullah concurring with him.
And the difficulties involved in extracting a ratio from
Golaknath lead one to prefer a pragmatic approach to
precedent — construction to rationes

Dr. Tabrez Ahmad,

Do you have any question?

Dr. Tabrez Ahmad,

Dr. Tabrez Ahmad,

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