Ratio Decidendi

As per Salmond, a precedent is a judicial decision that contains a legal

principle with an authoritative element called ratio decidendi. Ratio
decidendi means reason for the decision. Whenever a judge gets a case to
decide on, he has to adjudicate it even when there is no statute or
precedent concerning it. The principle that governs such a decision is the
reason for the decision which is also called ratio decidendi.

In an ordinary sense, we refer to as ratio the reason behind the decision but actually, it is much more than
that.

 The reason in this regard is not merely applying the law to the facts and coming up with an order.
 Ratio instead refers to the steps that are involved to resolve a dispute, this resolution must be directly related
to the issue or issues that are at the core of the dispute at hand.
 It must come from disputes of law, not disputes of fact.
 Ratio Decidendi must be argued in court and the facts of the precedent case shape the level of generality to
which the later courts decide the level of generality.
 Ironically when a precedent has multiple reasons, all reasons are binding.
 Ratio becomes a very powerful tool in the hands of a lawyer and that is why it becomes essential for him to
comprehend it well.
 To find the ratio in a judgement one looks at the abstract principles of law that have been applied to the facts
of that particular case.
 https://www.thelawproject.com.au/ratio-decidendi-and-obiter-dictum
The Ultimate Guide to the Ratio Decidendi and Obiter Dictum

Obiter Dicta
The term obiter dictum means mere say by the way. This term is used to
refer to statements of law that are not required for the case at hand. A
judge may in the judgement of a case declare some legal principles to be
applied in a hypothetical situation. It does not have much impact or
authority. However, the subordinate courts are bound to apply the
principles.

Obiter Dicta
Obiter is the term used for remarks made by the judge which are not binding on the parties to the case.

 Statements that are not crucial and refer to hypothetical facts or issues of law not related to the case also form
a part of obiter dicta in a judgement.
 Unlike ratio, obiter is not the subject of the judicial decision even if the statements made in this part are correct
according to law.

Wambaugh’s Inversion Test provides that to determine whether a judicial statement is ratio or obiter,
you should invert the argument, that is to say, ask whether the decision would have been different, had
the statement been omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is
obiter
 Theory of Volksgeist (What is Volksgeist?):
Volksgeist is the concept of law propounded by Savigny. The term Volksgeist is made by the two words
Volks means people, and geist means their common will. It means Volksgeist means the law is a common
will of the people (spirit of the people). In a simple sense, Volksgeist is a general and common perception of
the people or the spirit of the people.

The main idea of Savigny behind this theory was that law is an expression of the will of the people, and it
doesn't come from deliberate legislation and it develops as the consciousness of the nation arises. The
core of Volksgeist was that a legal system of a nation is mainly influenced by the historical culture and
traditions of the people, and its growth was located in their acceptance.

The theory of Volksgeist by Savigny can be explained in the

following heads:
Characteristics:

1. Law prevails basically in society:

According to Savigny, the law is the product of the people's life living in a particular society and it is
the outcome of a culture of a society. It embodies the history of a nation's culture and reflects inner
convictions rooted in society's common experience. The Volksgeist gradually drives the law to
develop throughout history. Thus, according to Savigny, a thorough understanding of the history of
people/society is necessary for studying the law accurately.

2. Law develops like a language:

Savigny stated that law develops like a language. He said that law is a national character and
develops like a language in the nation, which not only binds people with beliefs and opinions in a
group but also grows with the development of society. The development of both elements goes hand
in hand. It has no different existence, which follows them but considers as one being. History is proof
that law is developed according to the pre-existing manners in society and approved by the national
character, like language.

3. Law is a continuous and regular process:

Law is a continuous and unbreakable process bound by society's common culture and beliefs, not the
product of the day. It develops through the regular and continuous process of society. Customs and
usages in society are given common consent to be followed by the society in the beginning, and the
people follow them without any hesitation, insured willingly, and those not following become solitary in
the society and finally, all have to become common. This thing takes the shape of law in society.

4. Savigny's opinion on codification of law:

Savigny was against the codification of the law. He thinks that the development of the law should be
based on historical knowledge and not arbitral legislation.

5. The initial development of law is natural, and later on, it is developed by jurists:
He stated that in the early stages, the law developed naturally/spontaneously according to the internal
needs of the people. Still, after people reached a certain level of civilisation, different kinds of national
activity developed the law accordingly.

Rawls devised a hypothetical version of the social contract. Some have called it a
"thought experiment" (Rawls called it the "Original Position"). This was not a real
gathering with real people, bargaining over an agreement. Instead, it was an imaginary
meeting held under strict conditions that permitted individuals to deliberate only by using
their reason and logic. Their task was to evaluate principles of social justice and choose
the best ones. Their decision would be binding on their society forever.
Rawls added a requirement to assure that the choice of social justice principles would
truly be impartial. The persons in this mental exercise had to choose their justice
principles under a "veil of ignorance." This meant that these individuals would know
nothing about their particular positions in society. It was as if some force had plucked
these people from a society and caused them to experience severe amnesia a partial or total
loss of memory.

Under the "veil of ignorance," these imaginary people would not know their own age,
sex, race, social class, religion, abilities, preferences, life goals, or anything else about
themselves. They would also be ignorant of the society from which they came. They
would, however, have general knowledge about how such institutions as economic
systems and governments worked.
Rawls argued that only under a "veil of ignorance" could human beings reach a fair and
impartial agreement (contract) as true equals not biased by their place in society. They
would have to rely only on the human powers of reason to choose principles of social
justice for their society.
Rawls set up his "thought experiment" with several given systems of social justice
principles. The task of the imaginary group members under the "veil of ignorance" was
to choose one system of principles for their own society.
Rawls was mainly interested to see what choice the group would make between his own
Justice as Fairness concept and another called "Average Utility." This concept of justice
called for maximizing the average wealth of the people.
Making the Choice
The fictional persons in the experiment, using their powers of reason and logic, would
first have to decide what most people in most societies want. Rawls reasoned that
rational human beings would choose four things, which he called the "primary goods":
• wealth and income
• rights and liberties
• opportunities for advancement
• self-respect

Kelsen’s concept of law

Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of legal
philosophy, offered a “pure theory of law,” that is, a theory-free of social,
historical, political, psychological, and other influences thus omitting
everything that is not technically law and logically self-supporting. The law
is a normative (‘law as a coercive order’) rather than natural science, and
it comes with punishments. The test of legality can be found inside the
legal system itself. He described the law as “a set of rules governing
human behaviour.” Laws, according to Kelsen, are ought propositions, or
‘norms’. If X occurs, then Y should occur. As a result, if someone steals,
the individual should be penalised. Law does not seek to describe what
occurs in reality (‘is’), but rather only prescribes a set of principles. An act
of volition has a legal meaning called a norm. It refers to the act of
commanding, permitting, or authorising specific behaviour.
A norm is valid only because it is derived from or decreed by a higher
standard. This requires a ‘ladder of norms,’ with one norm legitimate
based on the validity of another norm. There are also ‘dependent’ or
facilitative norms that do not coerce people (for example, the right to write
a will, the President’s authority and the use of force in self-defence). The
so-called “independent” norms are actually coercive norms. The dependent
norms are dependent on their validity on the independent norms
(e.g., Section 299 of the Indian Penal Code, 1860 derives its validity
from Section 302). As a result, the legislation does not have an exclusively
commanding or obligatory nature.

The law is a set of behavioural standards that may be traced back to a

grundnorm, or fundamental norm, from which they gain their legitimacy.
The grundnorm must be effective, that is, people must have trust in it,
otherwise, a revolution will occur. There will always be some type of
grundnorm in any legal system, whether it is in the shape of a Constitution
or a dictator’s will. The grundnorm will be that the ‘Constitution needs to
be observed’ when there is a written Constitution (for eg in India, USA).
Where there is no written Constitution (like in the United Kingdom), the
grundnorm must be derived from social behaviour. The grundnorm of
international law is the concept ‘pacta sunt servanda’ (treaty duties bind
parties).

While the validity of norms issued from it is accounted for by the

grundnorm, one cannot account for one’s own validity by referring to
another norm. Its validity cannot be objectively evaluated, rather it must
be assumed or pre-supposed. It searches for evidence of its own
legitimacy in areas other than the law. It does, however, confer legality as
long as the legal order is ‘by and large effective.’ It should secure a
minimum efficacy, and when it loses the support of the people, it should
be replaced by another grundnorm.

No theory of justice can form part of the pure theory of law. Kelsen
painted a formal, scientific, and dynamic picture of the judicial system. He
has had a significant impact on modern legal philosophy. Kelsen’s idea has
been vigorously maintained by eminent jurists such as Stone and
Friedmann.

Criticism surrounding Kelsen’s theory

Kelsen’s thesis is criticised because he believes that a legal order is lawful
if it is successful, regardless of whether it is an illegitimate rule enacted by
unconstitutional means. This suggests that law is a system of external
coercion, in which individuals are compelled to follow laws. The
effectiveness of a grundnorm does not always imply that legislation is
valid. Kelsen does not specify a criterion for determining grundnorm’s
 minimal efficacy. The grundnorm only generates or verifies a legal or tier,
but it does not offer content to a legal order. The courts are responsible for
determining the grundnorm standard and determining the legitimacy and
efficacy of a legal order. Kelsen’s assumption that all norms save the
grundnorm are pure was disputed by Julius Stone. He claimed that other
norms that take their legitimacy from grundnorm cannot stay pure when
grundnorm is a composite of many social and political variables. He had
said that ‘we are invited to forget the illegitimacy of the ancestor in
admiration of the pure blood of the progeny( వ త ).’

Austin, Kelsen, and Hart’s ideas are dominated by coercive components.

According to their beliefs, any social norm becomes legislation if certain
formal conditions are met, regardless of its underlying worth or quality.
The essence of law is found in its purpose rather than its form. Morality is
excluded from the law by all three philosophers because morality no longer
plays a role after a law is enacted.

Conclusion
The different schools of thought in jurisprudence indicate distinct
approaches in handling the subject. The Analytical school of jurisprudence
highlighted the positive approach that needs to be adopted to address
legal challenges. The school came with its own sets of pros and cons that
the article highlighted, nevertheless one cannot ignore that the school had
a lot to offer to society in general.

Possession
Possession means custody or control. The idea of ownership developed slowly with the
growth of civilization. According to Salmomd possession establishes the relationship
between men and the material things. It is a mere fact. According to Pollock possession is a
physical control over a thing. According to Savigny possession is the physical power of
exclusion. Protection of possession is a branch of protection to the person. Freedom of will is
the ground for the protection of possession.

According to Ihering possession is de facto exercise of a claim over a thing. According to

Roman law possession is a prima facie evidence of ownership. It supports the title of
ownership. The possessor of a thing is presumed to be the owner. Long enjoyment of a
property creates ownership. This is known as prescription hence possession in nine points in
law.

Kinds of Possession
1. Possession in fact: The actual or physical possession of a thing is called Possession in
fact. Also known as de facto possession. It indicates physical control of a person over a
thing. There may be a physical relation with the object and the person. That physical relation
or control need not be continuous.
2. Possession in law: Possession which is recognized and protected by law is called
Possession in law. It is also known as de jure possession it is a possession in the eye of law.

Elements of possession
1. Animus possidendi: Means intention to possess a thing. It deals with subjective and mental
intention to possess a thing. It deals with subjective and mental element. It denotes a strong
desire to possess a thing. Here the possessor must have strong intention to possess a thing
he must have an exclusive claim, Animus Possidendi need not be a claim or right and need
not be a own claim and it need not be specified.

2. Corpus possessionis: Corpus Possession is means physical possession of a thing it deals

with objective element. According to Savigny the actual physical control over a thing is called
corpus possessionis. The physical control gives to an assumption that others will not
interfere with it. Possessor must present personally and physically possess. The possession
of a thing extends to accessories too. Possession includes protection and secrecy of thing.

Acquisition of possession
1. By taking.
2. By delivery.
3. By operation of law.

Types of Possession

1. Corporal and incorporeal possession: The possession of a material object is called corporeal
possession. Actual use or control over such material object is not necessary e.g. possession
of car. The Possession of other than a material object is called incorporeal possession.
Actual use and enjoyment of right is necessary.

2. Immediate and Mediate Possession: The direct or primary possession of a material object is
called immediate possession. The possessor holds thing personally without any intermediary
e.g. possession of a car owner.

Indirect or secondary possession of a material object is called mediate possession the

possessor of a material object is called mediate possession. The possessor holds the thing
on behalf of another. E.g. possession of a car driver.

3. Representative Possession: The Possession of a thing through an agent or a servant is

called Representative Possession. The representative is not the real possessor e.g. master's
money in the servant pocket.

4. Concurrent Possession: Two or more persons may jointly possess a thing at the same time.
This is known as Concurrent possession e.g. B may have right of way on the A land.

5. Derivative Possession: The possession of the holder of a thing is called Derivative

possession. He derives title from the person who entrusts the thing. e.g. a watch repairer. He
need not return the watch until the repair charges are paid.
6. Constructive possession: The possession in law is called constructive possession. It is not an
actual possession. It is a possession in law and not a possession in fact. Possession of keys
of a car implies the possession of car.

7. Adverse possession: The possession against every other person having or claiming to have
a right to the possession of that property is called adverse possession. It is a possession of a
thing without the permission of its real owner. Lessee possession after expiry of lease period.

8. Duplicate possession: The possession of a thing by two persons is called Duplicate

possession. The possession of one person is compatible with the possession of another
person. It is possible only when two claims are not mutually adverse.