CHAPTER V. SPECIAL CHARACTERISTICS OF CASE LAW: THE APPLICATION OF A PRECEDENT. Austin's judiciary law. Austin subjects the employment of case law to a very rigorous analysis, resulting, I cannot but think, rather in the determination of what ought to be, than of what generally is, the use of a precedent. Whenever a decision involves a new rule of law, that rule is not, according to him, stated in the decision, but is to be found in what is called the ratio decidendi, i. e. the general grounds or reasons alleged for it, abstracted from all modifications suggested by the peculiarities of the specific case1. Whether we consider the entire judgement, or the general positions and expressions which the judicial legislator employed, they must be implicated with these peculiarities. If the latter are not so implicated, or at least were not necessarily imported and naturally provoked by his judicial decision of the case before him3, they are extrajudicial, impertinent, and have, or ought to have, no authority. The ratio decidendi, then, which constitutes the rule of judiciary law, lies in concreto, exists nowhere in fixed or determinate expressions, and can only be discovered by this peculiar process of abstraction or induction". 1 Austin 37. pp. 643, 648. 3 Ib. 37. 646. 2 Ib. p. 642; 39. 671. 4 Ib. 37. 643, 696; 39. 679, 680. 5 Ib. 39. 671. The process, by which a ratio decidendi is arrived at, differs from the proper interpretation of a statute in that the former requires all indicia, which the previous case may afford, to be looked at, whereas a judge interpreting a statute is bound to look primarily if not exclusively to the very expressions in which the provision in question is given. This wideness of scope in determination of the ratio decidendi, or in other words the indeterminateness of its form and of the signs by which it is indicated, make the process of induction a difficult and delicate one'; but at the same time, if there is leisure to perform it, constitute an advantage over the narrower data allowed to the interpreter of a statute; if, that is, the statute be ambiguously worded. A statute aptly and unambiguously worded is of course more accessible and knowable than a rule of judiciary law, which must be obtained in the above manner. In the latter the obscurity and inaccessibility are inherent and essential: in statute law they could be avoided 10. Consistently with these views, Austin objects strongly to the frequent detachment, and insertion per se, of general propositions derived from cases, in the Code and Pandects. And he imposes upon the modern, who wishes to apply one of these Roman precedents, the additional task of inferring, from the reported fragments of the case, those unreported specific facts, by reference to which the general propositions ought to have been construed". In a passage previously quoted, Austin seems to admit the possibility of general propositions imported necessarily by the judicial decision of the pending matter"; although he elsewhere points out the reluctance which our judges have shewn to throwing out such propositions, which were not as proxi 6 Austin 39. 683; 37. 651. 11 Ib. 37. pp. 647, 8. 7 Ib. 39. 672. 10 Ib. p. 676. 12 Ib. p. 646. 8 Ib. 683. mate as possible to that matter13. For future cases closely resembling the one decided he would allow that a general proposition might not be extrajudicial; so that it is rather correct to say that the manner in which such propositions are accumulated by the judiciary system is slow and fragmentary than that they are not made at all. Practical application of precedents. The reader will scarcely be surprised to find that Austin's method of abstracting the ratio decidendi is not universally adopted in practice. A proceeding by no means unfamiliar either to English judges or practitioners is that of finding, not a rule, but some judicial decision as a whole, called a case on all fours with the pending one, by which the latter is to be decided. This kind of decision is stigmatised by Austin in somewhat too uncompromising language as purely arbitrary". The scientific use of precedents is undoubtedly different from this, but does not seem to include all Austin's steps or assume all his principles. I would refer on the subject to Mr Pollock's very able essays on Jurisprudence and Ethics, of which I much regret that I could not avail myself earlier in the composition of this book. Asserting, to the full, a good English lawyer's avoidance of general propositions which are not necessary to the decision, this author certainly does not appear to me to follow that laborious process of abstraction which we have just been told is essential to the employment of case law. His scientific practitioner has, to begin with, the chance of finding a general proposition applicable to the case in hand, based apparently upon the authority of a textbook, and which has, to all intents and purposes, replaced the particular judgements whereon it was founded1. This is a very important admission of the functions and authority of 13 Ib. 39. p. 680. 14 Austin 39. p. 686: see also 37. p. 643. 15 Pollock's Essays. The science of Case Law, pp. 256, 7. 16 Ib. p. 248. modern text-books, whether backed by some judgement subsequent to the generalisation in question or not. Failing such a general proposition, it will be necessary for our expert to have recourse to reasoning by analogy, between his case and those previously decided in simili materiâ. This process is indicated also by Austin, in his remarks on analogy, to which I shall briefly advert a little farther on. It may no doubt be even longer than Austin's abstraction of a ratio decidendi, if there are many cases to be considered. But it is scarcely so circuitous in each instance, as it goes from particulars to particulars", not from particulars to an imaginary general, and then back to other particulars. The remarks of Mr Pollock on the function of the Court, indicate the same process as that which he describes for the Counsel. An ideal standard of harmony" assumed or actually existing for the former, is practically referred to by the latter, when he seeks for an analogy which is real and close. The identification of this "ideal standard" with the old idea, of a perfect and uniform system of law gradually discovered by the judges, has the interest and merit of shewing some latent truth in what modern authors have generally considered a venerable falsehood 18. Cessante ratione legis cessat lex ipsa. À propos of his ratio decidendi Austin has some good remarks on an ambiguity in the use of the above maxim, which appears to arise from the indiscriminate use of the word lex in citations from the Justinian corpus juris. If lex be taken in its original sense of statute proper, the maxim is one of very questionable truth or utility, as has been shewn above". If lex be taken according to the middle-age use, following out Justinian's own idea, as extended also to those fragments of the Digest which are really case law, then the 18 Ib. pp. 251, 2. 19 P. 239: see Austin 33. p. 599. 17 Ib. p. 256. ratio of these last-named leges becomes Austin's ratio decidendi. The true ratio legis is the supposed object or purpose of a statute, which may be differently conceived of by different people, and is not an enacted part of the statute; so that it is inadmissible to infer the abrogation of the statute from failure of its supposed object. The ratio legis, where lex means a case, is the general principle deducible from the case, and constitutes the whole law to be got from that case; so that, if it fails to apply, the lex, whether we take it to mean the law of the case or the case itself, fails to apply also 20. Austin's distinction between the extension of a statute, ex ratione legis, to a case not falling within the provisions of the statute, and the application of a ratio decidendi to a case resembling that decided", is clearly and ably drawn, but need not be stated here in detail. As has been said above, I doubt whether a ratio decidendi, in the strict sense which he attaches to that phrase, is often extracted; and I am inclined to treat both the operations here distinguished as matters of analogy. Analogy. In the reasoning of Austin upon this subject as connected with judicial decision, and particularly in his remarks upon Paley and Romilly, it is only necessary, I think, to take into account the earlier part of that Excursus on analogy which seems to have been appended to Lecture 37. That is, we need only consider analogy in the sense of likeness 22, not analogy in the sense of an intellectual process. Nor is it necessary to dwell at any length upon the question of resemblance in the narrow sense in which resemblance is opposed to analogy". If a case resembles a previous one, in this sense of re 20 Austin 37. p. 652. 22 Austin, Excursus, pp. 1036-1010. 4 Austin 5. pp. 171, 2. 21 Ib. 23 Ib. 1040-1054. |