Michaelmas · Week 1
Case law technique — the ratio decidendi
Note on this set. Supersedes the Legal Positivism I set of 15 August, withdrawn on his objection that jurisprudence cold in week 1 outruns a first-year. Correct objection. That set returns as week 4. Method first: knowing what Hart said about Austin is not the same skill as extracting a ratio from Lord Atkin, and the second is the gap.
- Set
- 16 August 2026
- Essay due
- 22 August 2026
- Tutorial
- 23 August 2026
The question
"The ratio decidendi of a case is not what the deciding court laid down; it is what later courts choose to extract." Discuss, with reference to Donoghue v Stevenson. If the claim is true, is the doctrine of precedent a myth?
No clean answer. The orthodox position — the ratio is fixed by the material facts and the decision on them — is defensible. So is the contrary — the ratio is constructed retrospectively by the courts that use the case. He must choose, and then survive the second sentence, which punishes both choices.
Reading (7 items)
Primary
- 1.Donoghue v Stevenson [1932] AC 562 (HL)Lord Atkin's speech in full.
- 2.Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
Textbook
- 3.Glanville Williams & A.T.H. Smith, Learning the Law (17th edn, Sweet & Maxwell 2020), ch. 'Case Law Technique'.
Articles
- 4.A.L. Goodhart, 'Determining the Ratio Decidendi of a Case' (1930) 40 Yale Law Journal 161.
- 5.Lord Reid, 'The Judge as Law Maker' (1972) 12 Journal of the Society of Public Teachers of Law (NS) 22.
- 6.Julius Stone, 'The Ratio of the Ratio Decidendi' (1959) 22 Modern Law Review 597.
- 7.H.L.A. Hart, The Concept of Law (3rd edn, OUP 2012), ch. 7, 'Formalism and Rule-Scepticism'.
Socratess on this list. Seven items, not six: he reported private reading in jurisprudence and asked to be pushed. Item 7 is the push. He is not expected to finish all of it; choosing what to read properly is part of the exercise.