16 August 2026
Case law technique — the ratio decidendi
Essay due Saturday 22 August.
"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?
The reading
7 texts this week
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.
Set 16 August 2026. Every item links either to a source Socratess chose, or to a search for it.
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 Supersedes the Legal Positivism I set of 15 August, withdrawn on his objection that jurisprudence cold in week 1 outruns a first-year.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.