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Tools of legal methods & legal reasoning


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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

Tools of legal methods & legal reasoning

  1. 1. Dr. Tabrez Ahmad, 1
  2. 2. Dr. Tabrez Ahmad, 2
  3. 3. 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, 3
  4. 4. 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, 4
  5. 5. Understanding the various parts ofthe statutesa. Title – the heading on the preliminary part, furnishing the name bywhich the act is individually known. It is usually prefixed to thestatute in the brief summary of its contents.b. Preamble – part of statute explaining the reasons for its enactmentand the objects sought to be accomplished. Usually, it starts with“whereas”.c. Enacting clause – part of statute which declares its enactment andserves to identify it as an act of legislation proceeding from the properlegislative authority. “Be enacted” is the usual formula used to startthis clause.d. Body – the main and operative part of the statute containing itssubstantive and even procedural provisions. Provisos and exceptionsmay also be found. Dr. Tabrez Ahmad, 5
  6. 6. e. Repealing Clause - announces the prior statutes orspecific provisions which have been abrogated by reasonof the enactment of the new law.f. Saving Clause – restriction in a repealing act, which isintended to save rights, pending proceedings, penalties,etc. from the annihilation which would result from anunrestricted repeal.g. Separability Clause – provides that in the event thatone or more provisions or unconstitutional, theremaining provisions shall still be in force.h. Effectivity Clause – announces the effective date ofthe law. Dr. Tabrez Ahmad, 6
  7. 7. KINDS OF STATUTES1. General Law – affects the community at large. That whichaffects all people of the state or all of a particular class.2. Special Law – designed for a particular purpose, or limitedin range or confined to a prescribed field of action onoperation.3. Local Law – relates or operates over a particular localityinstead of over the whole territory of the state.4. Public Law – a general classification of law, consistinggenerally of constitutional, administrative, criminal, andinternational law, concerned with the organization of thestate, the relations between the state and the people whocompose it, the responsibilities of public officers of the state,to each other, and to private persons, and the relations ofstate to one another. Public law may be general, local orspecial law. Dr. Tabrez Ahmad, 7
  8. 8. 5. Private Law – defines, regulates, enforces and administersrelationships among individuals, associations andcorporations.6. Remedial Statute – providing means or method wherebycauses of action may be affectuated, wrongs redressed andrelief obtained.7. Curative Statute – a form of retrospective legislationwhich reaches back into the past to operate upon past events,acts or transactions in order to correct errors andirregularities and to render valid and effective manyattempted acts which would otherwise be ineffective for thepurpose intended.8. Penal Statute – defines criminal offenses specifycorresponding fines and punishments. Dr. Tabrez Ahmad, 8
  9. 9. 9. Prospective Law – applicable only to cases which shallarise after itsenactment.10. Retrospective Law – looks backward or contemplatesthe past; onewhich is made to affect acts or facts occurring, or rightsoccurring, before it came into force.11. Affirmative Statute – directs the doing of an act, ordeclares what shall be done in contrast to a negativestatute which is one that prohibits the things from beingdone, or declares what shall not be done.12. Mandatory Statutes – generic term describingstatutes which require and not merely permit a course ofaction. Dr. Tabrez Ahmad, 9
  10. 10. REPEALS OF STATUTE MAY BE EXPRESSED OR IMPLIEDExpress repeal – is the abrogation or annulling of a previously existinglaw by the enactment of a subsequent statute which declares that theformer law shall be revoked and abrogated.Implied repeal – when a later statute contains provisions so contrary toirreconcilable with those of the earlier law that only one of the twostatutes can stand in force. The repeal of a penal law deprives the court ofjurisdiction to punish persons charged with a violation of the old penallaw prior to its repeal.Only a law can repeal a law.The intention to repeal must be clear and manifest, otherwise, at least, asa general rule, the later act is to be construed as a continuation of, and nota 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 anirreconcilable conflict;2. If the later act covers the whole subject of the earlier one and isclearly intended as a substitute – to be a complete and perfect system initself. Dr. Tabrez Ahmad, 10
  11. 11. Relevance of General Clauses Act, 1897 inthe Interpretation of statutes Dr. Tabrez Ahmad, 11
  12. 12. Various Parts & Sections of Gazette of IndiaPart 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-StatutoryPart 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, 12
  13. 13. Part II Section 1 Authoritative taxes in Hindi language of Acts, Ordinances andA (Hindi) Regulations.Part II Section 2 Bills and Reports of the Select Committee of Lok SabhaPart II Section 3 General Statutory Rules (including Orders, By laws etc. of generalSub 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 theSub 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 inSub 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, 13
  14. 14. Part III Notifications issued by the High Courts, the ComptrollerSection 1 and Auditor General, Union Public Service Commission the Indian Railways and by attached and subordinate offices of the Government of IndiaPart III Notices & Notifications issued by the Patent OfficeSection 2 CalcuttaPart III Notifications issued by or under the authority of ChiefSection 3 CommissionerPart III Miscellaneous Notifications including Notifications,Section 4 Orders Advertisements and Notices issued by Statutory Bodies Dr. Tabrez Ahmad, 14
  15. 15. Part IV Advertisement and Notices issued by the private individuals and private bodies. Dr. Tabrez Ahmad, 15
  16. 16. 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, 16
  17. 17.  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, 17
  18. 18.  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, 18
  19. 19.  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, 19
  20. 20.  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 Judges 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, 20
  21. 21.  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, 21
  22. 22.  (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, 22
  23. 23.  In Osborne v. Rowlett, Sir George Jessel says: "The only thing in a Judges 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, 23
  24. 24.  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, 24
  25. 25.  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, 25
  26. 26.  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, 26
  27. 27.  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, 27
  28. 28.  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, 28
  29. 29.  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, 29
  30. 30.  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, 30
  31. 31. 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, 31
  32. 32. 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, 32
  33. 33. 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, 33
  34. 34. 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, 34
  35. 35. 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, 35
  36. 36. 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, 36
  37. 37. 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, 37
  38. 38. Deductive Versus Inductive Forms of ReasoningDr. Tabrez Ahmad, 38
  39. 39. Two basic categoriesof 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, 39
  40. 40. 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, 40
  41. 41. 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, 41
  42. 42. 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, 42
  43. 43. 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, 43
  44. 44. 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 44
  45. 45. Other types ofdeductive 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, 45
  46. 46. Other types ofdeductive 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, 46
  47. 47. Other types ofdeductive 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, 47
  48. 48. 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,
  49. 49. 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, 49
  50. 50. 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, 50
  51. 51. Legal ReasoningConcepts 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, 51
  52. 52. Legal reasoning and logicLawyers 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, 52
  53. 53. Types of reasoningThere are two types of reasoning1. Deductive reasoning2. Inductive reasoningDeductive reasoningA 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, 53
  54. 54. Inductive reasoningIf 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, 54
  55. 55. 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, 55
  56. 56. Legal Reasoning and JustificationProfessor 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, 56
  57. 57.  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, 57
  58. 58.  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, 58
  59. 59. 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, 59
  60. 60. How to determine ratio of a case Dr. Tabrez Ahmad, 60
  61. 61.  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, 61
  62. 62.  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, 62
  63. 63.  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 courts 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, Stones argument is that Goodharts 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, 63
  64. 64.  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, 64
  65. 65.  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, 65
  66. 66.  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 Goodharts 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, 66
  67. 67.  (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 Judges 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, 67
  68. 68.  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, 68
  69. 69.  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, 69
  70. 70.  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, 70
  71. 71.  (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, 71
  72. 72.  (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, 72
  73. 73.  "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, 73
  74. 74.  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, 74
  75. 75.  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, 75
  76. 76.  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, 76
  77. 77.  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, 77
  78. 78.  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, 78
  79. 79.  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, 79
  80. 80. Do you have any question? Dr. Tabrez Ahmad, 80
  81. 81. Dr. Tabrez Ahmad, 81