LLAW6259 Chap.2 Precedent, Ratio, Obiter and Binding Force
Precedent, Ratio, Obiter and Binding Force
Binding and persuasive differ in kind, not in strength
Precedent strictly so called operates where a case is binding: a lower court follows a higher court, and a court follows itself. Some decisions are not binding but persuasive, and overseas courts are the standard example. Reading persuasive as weakly binding is the error that costs most, because the two call for different arguments.
Against a binding authority you must distinguish, since even a judge who thinks it wrong must apply it. Against a persuasive one you may argue directly that its reasoning does not hold here. One further distinction hides inside the same phrase: the doctrine of precedent covers a superior court binding a lower one, and it also includes stare decisis, a superior court being bound by its own previous decision.
Those are governed by different rules.
Four verbs, and the pair that is most often confused
A court may follow an earlier case, distinguish it, overrule it or reverse it. Following applies the earlier ratio to the present facts.
Distinguishing holds that the earlier ratio does not reach these facts or this point of law, and is available even to a court that is strictly bound, because nothing about the hierarchy is being challenged. Overruling and reversing are the pair that gets muddled. Reversing happens inside one case, on appeal, between the same parties, and changes who wins.
Overruling happens across two cases: a court in a later dispute between different parties holds that the rule stated earlier was wrong, so the earlier case stops being authority while the outcome between the original parties is untouched.
The ratio has two limbs and neither is optional
A decided case contains the decision, the judgment and, inside the judgment, the ratio decidendi.
Only the ratio binds a later court. The test has two limbs: the court ruled on a point of law, and the outcome could not have stood without that ruling. Most disputed passages fail the second limb, which is why an argument about whether something is ratio or obiter is nearly always an argument about whether the outcome depended on it. Obiter dicta are the remainder.
They can be highly persuasive, and they never bind.
Six reasons the answer is not written down
The course is candid about the difficulty. The judge does not state the ratio. Identifying it is an art rather than a science. It depends on which facts were material. Where there are two or more judgments it is drawn from all the majority judgments taken together.
It may depend on how subsequent cases have read the decision, so the ratio of a case can effectively shift after it was decided. And it can simply be argued about, which is legitimate advocacy rather than a sign that someone has misread the report. A dissenting judgment forms no part of it and binds nobody, though it is often the best statement of the opposing case and the natural starting point for a later challenge.
What this chapter covers
- 01
Binding against persuasive, and why the difference is categorical
- 02
Precedent and stare decisis as two relationships under one name
- 03
Follow, distinguish, overrule, reverse: choosing the right verb
- 04
The two-limb test for a ratio decidendi
- 05
Why most disputed passages fail the second limb
- 06
Six reasons the ratio is not stated by the judge
- 07
Seven factors bearing on the weight of a precedent
- 08
Seven published routes past an unhelpful authority
Separate ratio from obiter across three judgments
- 3State the two-limb test for a ratio and apply it to the vagueness passage.
- 2State the rule for drawing a ratio where there is more than one judgment.
- 1Say what status the vagueness passage and the dissent each have.
Key terms
- Stare Decisis
- The branch of the doctrine of precedent under which a superior court is bound by its own previous decision, as distinct from a lower court being bound by a higher one.
- Material Facts
- The facts the determination of law actually turned on. Which facts were material is itself a judgment call, and it is why two lawyers can read the same case as having different ratios.
- Distinguishing
- Holding that an earlier ratio does not reach the present facts or the present point of law. It is not a statement that the earlier case was wrongly decided.
- Overruling
- Holding, in a later and different case, that an earlier decision stated the law wrongly, so that it ceases to be authority for the future.
- Reversing
- Setting aside the decision of the court below in the same proceedings on appeal, which changes the outcome between those parties.
- Per Incuriam
- Of a decision reached in ignorance of an inconsistent statutory provision or a binding authority, which is one reason a court may decline to follow its own earlier decision.
- Dissenting Judgment
- The judgment of a judge who disagreed with the majority. It forms no part of the ratio and often states the opposing case at its strongest.
- Weight Of A Precedent
- How much attention a court should pay to a decision that does not bind it, assessed by the court, the judges, any dissent, the date, later treatment and reputation.
Precedent, Ratio, Obiter and Binding Force FAQ
How do I find the ratio if the judge does not say what it is?
By working out which determination of law the outcome could not survive without. The test has two limbs: the court ruled on a point of law, and the outcome could not have stood without that ruling. In practice you read the statement of facts, identify which facts the holding relied on, and then ask of each legal proposition in the judgment whether removing it would change who won.
Where there is more than one judgment, the ratio comes from the majority judgments taken together rather than from whichever one you read first.
Is obiter worth citing at all?
Often yes, provided you call it what it is. A considered observation by a senior judge on a point that was fully argued may be followed everywhere, and it is frequently the clearest statement of a principle available. What you cannot do is present it as binding. The question your answer has to reach is never whether a passage is useful but whether it obliges the court, and obiter never does.
When can a court get around a precedent it does not like?
The course lists seven routes: distinguish the facts, distinguish the point of law, read the ratio narrowly, argue there is no clear ratio, argue that a later decision of a higher court has overruled it by implication, argue that it is outdated, or argue that it is plainly wrong. Choose one and argue it properly.
Listing all seven in an answer signals that none of them has been thought through, and the first two are the ones available to any court whatever the hierarchy.
Assessment move
Take one case from your Contract or Tort reading and write its ratio in a single sentence, then write the one fact that, if changed, would take the case outside it. If you cannot name that fact, you have written a summary of the case rather than its ratio.
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