JURISPRUDENCE SEMESTER-VII

REVISITING A. L. GOODHART:

RESOLVING THE PROBLEMS IN

HIS SOLUTIONS
SUBMITTED BY - NIPUNJ NIKET - 2017 B.A.LL.B. 24 – FOURTH YEAR

SUBMITTED TO – MR. RANJAN KUMAR– ASSISTANT PROFESSOR

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 II REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................... II

STATEMENT OF PROBLEM ......................................................................................................... IV

OBJECTIVES OF THE STUDY ...................................................................................................... IV

HYPOTHESIS .....................................................................................................................................V

RESEARCH QUESTIONS .................................................................................................................V

REVIEW OF LITERATURE............................................................................................................ VI

ARTHUR L. GOODHART, DETERMINING THE RATIO DECIDENDI OF A CASE, THE YALE LAW JOURNAL,

DECEMBER 1930: ............................................................................................................................................ VI

J. L. MONTROSE, RATIO DECIDENDI AND THE HOUSE OF LORDS, (1957) 20 M. L. R. 124: ..................... VI

A. W. B. SIMPSON, THE RATIO DECIDENDI OF A CASE, (1957) 20 M. L. R. 413: ..................................... VI

ARTHUR L. GOODHART, THE RATIO DECIDENDI OF A CASE, (1959) 22 M. L. R. 117: ........................... VII

GLANVILLE WILLIAMS, LEARNING THE LAW, 16TH EDITION, SWEET AND MAXWELL (SOUTH ASIAN

EDITION): ........................................................................................................................................................ VII

INTRODUCTION ...............................................................................................................................1

IDENTIFYING PROBLEMS IN GOODHART’S ARTICLE .......................................................... 3

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 REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS III

CONFIRMATION BIAS: ......................................................................................................................................... 4

INCREASES CHANCES OF ERRONEOUS READING: ............................................................................................... 8

THE FALLACY OF UNDISTRIBUTED MIDDLE: ................................................................................................. 10

CONCLUSION: AN ATTEMPT TO SAVE THESIS FROM ITS OWN FALLACIES .................. 13

BIBLIOGRAPHY ............................................................................................................................... 14

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IV REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS

STATEMENT OF PROBLEM

Professor Goodhart claims that the facts chosen by a judge, even though it might have been a

wrong choice, leads us to the rule of law of the case by offering a justification for the conclusion

that the judge reached for the case. A conclusion guided by incorrect choice of facts cannot lead

us to a ratio that can be applied to other cases by other judges.

OBJECTIVES OF THE STUDY

The objectives of the present research work are:

1. To understand the framework of Professor Goodhart’s article.

2. To find instances where the strands of ideas do not seem to be aligned and are thus

contradictory.

3. To understand the reasons that Professor Goodhart employed in reaching his

conclusions.

4. To have a brief overview of articles which have been written as a reply to the original

article.

5. To understand the reasons put forth by Professor Goodhart in defence of his original

work.

6. To evaluate if the original article and the later article can be considered to be putting

forth a coherent whole to understand the subject.

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS V

HYPOTHESIS

‘Determining the Ratio Decidendi of a Case’ tries to provide a set of rules that can be used to

understand and find the ratio decidendi of a case. But, the improper treatment of the reference

literature in the article leads to inherent contradictions, which defeats the core purpose of

enhancing the understanding of the subject. The inherent contradictions seem to be stemming

from the fact that the author proceeded to study the subject with a confirmation bias and not to

find the actual rules that may be suited to solve the issues faced by students of law.

RESEARCH QUESTIONS

In the present research work, the researcher will try to find answers for the following research

questions:

1. Whether the rules furnished in ‘Determining the Ratio Decidendi of a Case’ can be

constructed in a harmonious whole to relieve the article of its inherent contradictions?

2. Whether the articles written as replies to Professor Goodhart’s article furnish a proper

ground for attacking the arguments used in the original article?

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VI REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS

REVIEW OF LITERATURE

Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, The

Yale Law Journal, December 1930:

This article functions as the core literature out of which the research problems have been

extracted. The problems that are to be identified in this article will be tested against the

standard of the concept of ratio decidendi as dealt by other authors in a significantly

varying spectrum of forms of literature.

J. L. Montrose, Ratio Decidendi and the House of Lords, (1957) 20 M.

L. R. 124:

The article written by Professor Goodhart seems to be having a few errors in treatment

of the literature it relies upon to build its course of argument. This article, by J. L.

Montrose, tries to explore those inherent inconsistencies and expresses his dissatisfaction

towards the conclusions reached by Professor Goodhart. This article will be used in the

course of research work to support the claims as understood by the present researcher.

A. W. B. Simpson, The Ratio Decidendi of a Case, (1957) 20 M. L. R.

413:

In this article, A. W. B. Simpson joins J. L. Montrose in contradicting the arguments and

conclusions of Professor Goodhart. He also tries to explain his understanding of the

concept and then tries to explore how and where the original article went wrong in

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS VI
I

stating the concept. This article will also be relied on to explain the inconsistencies in the

arguments of Prof. Goodhart. Furthermore, this article and the one stated just above

along with two other articles, one each by J. L. Montrose and A. W. B. Simpson, have

been used to build a coherent set of argument to refute the claim of Professor Goodhart.

Arthur L. Goodhart, The Ratio Decidendi of a Case, (1959) 22 M. L.

R. 117:

In this article, Professor Goodhart tries to reply to the doubts expressed by J. L.

Montrose and A. W. B. Simpson. Though, he is clear in his statement that he “is not

certain that I [Goodhart] have always understood their arguments”, he still tries to

address the doubts expressed by these academicians. What clearly happens, in the

absence of understanding of the conflicting claims, is that Professor Goodhart almost

reproduces his previous arguments in, so to say, a better phraseology.

Glanville Williams, Learning the Law, 16th Edition, Sweet and

Maxwell (South Asian Edition):

This book has been a useful source for discovering the problem targeted in the present

research work and also in putting the idea into perspective by properly explaining the

implications of the choice of arguments by Professor Goodhart.

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS 1

INTRODUCTION

In the Common Law jurisdictions of the world, judicial decisions are one of the most important

sources of deriving the law. The exposition of law in a constitution, or a statute in other cases,

may be broad and general. This broadness and generality is, in the most of the cases, consciously

incorporated so that the law may be capable enough to take care of the specificities of various

circumstances that might not have been thought by the legislature. Courts interpret and lay down

the law specifically within the four corners of the statute to deliver justice in a way that was

intended by the legislature. This specific interpretation of the law, which is though general in

nature, forms ratio decidendi of that case. This ratio decidendi is then made applicable to the cases of

similar nature to ensure that one of the primary aims of law to avoid uncertainty is achieved.

More often than not, courts dealing with subsequent cases of similar nature are faced with the

difficulty of determining the ratio decidendi as has been laid down previously. This stems from the

fact that the task of determining the ratio decidendi is upon the court subsequently involved in

addressing an issue of similar nature. The judgment out of which the ratio decidendi needs to be

extracted, generally, does not lay down the ratio decidendi in specific terms.

A standard set of rules that help in finding solution to this problem would be a very handy tool

in the hands of a legal practitioner. Furthermore, such rules will always be an important part in

the upbringing of a law student who finds judgments complex and indecipherable. Prof. A. L.

Goodhart found some tools of this nature to help practitioners and the students of law.

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2 REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS

But, it’s not always important that all the rules that were found by Professor A. L. Goodhart

were convenient to be used. Any rules of deciphering something that seems to be variable are

not cast in stone and thus are subjective in nature for most of the cases. Prof. Goodhart’s rules

also seem to be contradictory at times.

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS 3

IDENTIFYING PROBLEMS IN GOODHART’S ARTICLE

Before proceeding to understand the specifics of the problem that have been found by the

researcher while reading the proposed method of Professor Goodhart, it is important to provide

the background of how the researcher came to know of the problems in the exposition of

Professor Goodhart.

The rules of determining the ratio decidendi of a case were one of the first things that were taught

to us in the law school. The rules that were discussed were accepted without even giving a

second thought and without even considering the possibility of presence of an error in the

method suggest by the rules. In the initial years judgments that were not so complex were taught

to us, and not even the judgment, only the relevant parts of the judgment that was followed by

the courts in subsequent cases were treated to be the law. This created two kinds of problem for

the students. Firstly, the students never had the opportunity to apply the rules taught to them

and thus the students were deprived of the opportunity to evaluate the content of the rules.

Secondly, the specific statement of law chosen out from the judgment was though to be the

entire exposition of the law without realising that the chosen statement might be the condensed

form of the statement of law taken out of the judgment.

The first opportunity to evaluate the problems that were present in the exposition of Prof.

Goodhart was made available to the researcher while reading the book ‘Learning the Law’.1 In

1
Glanville Williams, Learning the Law (16th edn. Sweet and Maxwell – South Asia Edition 2019).

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4 REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS

discussing the rules of determining the ratio decidendi of a case, Glanville Williams points out a

glaring inconsistence in the way the point has been stated in the original article of Professor

Goodhart.2 In the following part of this chapter the specific instances of the errors have been

discussed under separate heads.

CONFIRMATION BIAS:

In any analysis for determining the ratio of a case, the material facts play a very important role.

The choice of facts that consist of this category of facts strongly governs the rule of law that will

be propounded in the judgment. Without the proper formulation of the material facts of the

case, the point of laying down the rule of law most of the times evades the judges. Considering

this factor, Prof. Goodhart seems to rely excessively on the point of choice of material facts even

when it would result in total absurdity in the final conclusion. Thus, the analysis of Prof.

Goodhart gives strong evidences of the presence of a confirmation bias. The instances that make

the researcher believe this are outlined in the following paragraphs.

In his original article Goodhart quotes Professor Oliphant to establish his point of view by

criticizing the stand that Professor Oliphant took. The quoted part reads:

“But there is a constant factor in the cases which is susceptible of sound and
satisfying study. The predictable element in it all is what courts have done in
response to the stimuli of the facts of the concrete cases before them. Not the

2
Prof. A. L. Goodhart, Determining the Ratio Decidendi of a Case (The Yale Law Journal, Volume 40,
Number 2, December 1930, pp. 161 – 183).

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS 5

judges' opinions, but which way they decide cases, will be the dominant subject
matter of any truly scientific study of law.” 3

Prof. Oliphant is of the opinion that the opinion that has been delivered by the judges cannot be

treated as the dominant subject matter for the study of the ratio decidendi of the case. What

actually matters is the thing that has been actually done by the judges. By further explanation he

adds that the thing, which the judges ultimately did in the case, would be the governing factor in

determining the law and not the opinion or the discussion that has actually preceded that

discussion. He classifies the behaviour of the judges into two categories viz. the vocal

behaviour of the judge and his non – vocal behaviour.

According to him, too much reliance on the vocal behaviour of the judge would mean missing

the substance of the law that is formulated by him. The substance of the law formulated would

be found by studying the non – vocal behaviour of the judge i.e. his response to the questions

that have arisen before him for final settlement. An approach that relies heavily on the vocal

behaviour would thus be incomplete and fallacious.

Professor Goodhart disagrees quite strongly. In his opinion, Prof. Oliphant has treated the

facts of a case as a constant factor that do not vary. He further claims that facts are never

constant and they are only relative and it is in this light that a judge frames the rule of law. The

same set of facts can be seen by two different persons in two absolutely different perspectives

and thus is nothing but obvious that the judge reaches the conclusion upon the facts as he sees

3
Prof. Oliphant, A Return to Stare Decisis [(1928) A. B. A. J. 71, 159].

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them. It is on these facts that the judge bases his conclusions. He concludes by saying, “it is by

his choice of material facts that the judge creates law” and therefore it is essential to understand

the vocal behaviour of the judge. [PART I]

Professor Goodhart then steps into a territory where he contradicts himself probably

without even realising his mistake. According to him, we are bound by the judge’s statement

of facts even though it is patent that he has misstated them. He again emphasizes on his earlier

statement by saying “for it is in these facts, perhaps incorrectly, that he has based his

judgment…if we are not bound by the facts as stated by the judge, it would be wholly illogical to

be bound by his conclusion of those facts.” [PART II]

In PART I Prof. Goodhart argues that the same set of facts can be viewed differently and thus

the application of particular facts by the judge must be relevant to understand the conclusion

otherwise the entire conclusion is nothing but absurdity. There are numerous examples where

this analysis by Professor Goodhart fails. For one, the right to privacy judgment4 of the Hon’ble

Supreme Court of India is a good example. In the judgment, Sanjay Kishan Kaul, J. records his

observation in the following terms:

“1. I have had the benefit of reading the exhaustive and erudite opinions of Rohinton
F. Nariman, J, and Dr. D.Y. Chandrachud, J. The conclusion is the same, answering
the reference that privacy is not just a common law right, but a fundamental right
falling in Part III of the Constitution of India. I agree with this conclusion as
privacy is a primal, natural right which is inherent to an individual. However, I
am tempted to set out my perspective on the issue of privacy as a right, which to

4
Justice K. S. Puttaswamy (Retd.) v. Union of India and Anr., (2017) 10 SCC 1.

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REVISITING A. L. GOODHART: RESOLVING THE PROBLEMS IN HIS SOLUTIONS 7

my mind, is an important core of any individual existence.” (EMPHASIS

SUPPLIED)

In this judgment Sanjay Kishan Kaul, J. agrees with all the judges in the conclusion but offers a

different reasoning to reach the same conclusions. Moreover, a reading of the judgment will

show that the separate treatment of the facts of the case did not result in two separate

conclusions or even one conclusion being absurd in the light of separate treatment of facts

elsewhere or no explanation on some facts at all. The separate treatment of facts in this case

would not at all means that we are not bound by the conclusions of Sanjay Kishan Kaul, J.

In PART II, he has granted the judge absolute control over the outcome of the case that is

totally unfounded. According to him, we are bound by the conclusions of the judge even when

he appears to be patently wrong. This ultimately means that the Professor is not at all disturbed

with the substantial inaccuracy and absurdity in the rule of law. But, a mere non – resemblance

between the reasons given by the court (vocal behaviour) and the decision of the court (non –

vocal behaviour) would result into ‘absurdity of law’.

Moreover, in PART I, there is unusually strong emphasis on the facts of the case. In Part II the

emphasis all of a sudden shifts to the conclusion reached by the judge. He asserts that if we do

not accept the facts, we cannot understand the conclusion or the conclusion becomes

inoperative without the understanding of the facts. The conclusion, according to him, has to be

accepted even if it seems to be based on the wrong choice of facts. That means the conclusion,

though wrong, needs to be accepted as ratio. This strongly hints at the presence of

confirmation bias in the analysis that Professor Goodhart ultimately reaches.

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INCREASES CHANCES OF ERRONEOUS READING:

Is is obvious from the reading of the discussion in the previous parts, the theory of determining

the ratio decidendi have strong chances of becoming redundant where the opinion of the court

(vocal behaviour) is incomplete of where there is no opinion at all. It would thus be impractical

to rely excessively on the vocal behaviour of the judge where the judge is ‘not so vocal’. In those

cases where the judges tend to jump to the conclusions quickly without dedicating considerable

amounts of pages to substantial discussion, the conclusions of those judges cannot be said to be

absurd or inoperable. Those decisions even stand without the reasoned explanation of factual

background of the case.

For this Prof. Goodhart offers a strange solution. He, among other things, says that “if there is

no opinion, or if the opinion does not contain a statement of the facts, then we must assume

that all the facts given in the report are material except those which on their face are not.”

This is a classic example of arguing that ‘one size fits all’. If we do not know anything about the

matter at hand, then according to Goodhart one must try everything once and see if it works. In

the opinion of the researcher the materiality of a particular set of facts is derived from the

conclusion as far as it can do so. Treating particular set of facts as material facts and

ignoring others where there is no opinion of the judge on the same, just to find a fitting

explanation for the conclusion that the judge reached in the end, would be to find rule of

law of the judgment in ones own perception than finding it in the judgment itself.

Professor Goodhart makes another interesting observation regarding finding the correct

exposition of the law that has been propounded in the case. In many cases it might be very

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difficult to grasp the principle behind the case as has been stated in the reporter. For this another

suggestion has been offered. In such situations “it is for this reason in particular that it is

useful to compare the various reports of the same case if there is any doubt as to the

principle involved in it.”

The above suggestion offered by Goodhart does not hold much value if all the reports have the

same enunciation of the case and no difference is found in the explanation offered by different

reporters. This particular suggestion proceeds on the presumption that a case, in which doubts

regarding principle involved exist, must have been cited by more than one reporter and one of

them must have a clear exposition of the principle involved. It is thus to be understood that

where there is more than one reporter, all of which have cited the case in the same

manner and even after that the doubt still remains, the conclusion of the judge cannot be

treated as an absurdity. Because, what the judge did in the case was totally irrespective of what

he said in the case.

Thus, the proposed method of reading of a particular case, as has been explained by Prof.

Goodhart does not give a certain answer to the person seeking the ratio decidendi of the judgment.

The method of continuously trying to find the correct exposition of the principle elsewhere if it

is not available in the resource at hand would be an effort of trying to fit the reason onto the law

and not the reason that is inherent in it. It thus increases the chances of erroneous reading by

letting off the reader with a presupposed doubt in the mind of the reader about the authenticity

of the report. It would thus be beneficial to find the reason behind the judgment of the court by

instead of sacrificing the decision for the lack of a proper reason offered by the judge.

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THE FALLACY OF UNDISTRIBUTED MIDDLE:

Before understanding how the explanation of Prof. Goodhart is susceptible to the ‘fallacy of

undistributed middle’ or the ‘fallacy of simple conversion’, a few words must be said about

the same. Unless a proper explanation of this fallacy is offered, it would be difficult to

understand how this fallacy finds place in Goodhart’s arguments.

The fallacy of undistributed middle is studied while understanding the rules of logic and

especially syllogism. For a proper exposition on the matter, the researcher would like to refer to

the following brief extract:

“In a valid categorical syllogism, the middle term must be distributed in at least
one premise. Any syllogism, which violates this rule, is said to commit the
Fallacy of Undistributed Middle. It should be clear by the following
considerations that any syllogism that violates this rule is invalid. The
conclusion of any categorical syllogism asserts a connection only if they assert
that each of the two terms is connected with a third term in such a way that the
first two are appropriately connected with each other through or by means of the
third. For the two terms of the conclusion really to be connected through the
third, at least one of them must be related to the whole of the class designated by
the third or middle term. Otherwise each may be connected with a different part
of that class, and not necessarily connected with each other.”5

On a proper analysis, Prof. Goodhart can be said to have concluded two things among many

other things. These two conclusions have been summarised by Glanville Williams in his book

‘Learning the Law’.6 Firstly, Goodhart says that it is for the judge who decides the case, and for

5
Copi, Introduction to Logic, 2nd ed. pp 189-90. Can also be found in Stuart v. Diplock, 43 Ch.D.
343, 352.
6
Supra Note 1.

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him alone, to determine what facts are material, and the judge may express his decision that facts

are immaterial merely by leaving them out of the rule of law that he propounds. Secondly, he

states that the ratio decidendi of a case is not necessarily the rule of law stated by the judge, because

that may be too wide.

These two conclusions are loaded heavily with inherent contradiction. This inherent

contradiction can be shown by the use of Fallacy of Undistributed Middle. Here, ‘rule of law’ is

the middle term that connects material facts and the ratio decidendi of a case. It is understood by

the students of law that in the ultimate analysis, the judge chose the material facts and for which

he has offered his opinion would guide us to the ratio decidendi of a case. But, here the middle

term does not help us find the necessary connection that Goodhart has given to the opinion of

the judge and the rule of law that he propounds.

Thus, whereas the rule of law as stated by the judge may be wide and not helpful in finding the

ratio, his choice of facts as material and immaterial is guided by sound considerations upon which

the judgment is drawn and not only upon the discretion of the judge. In giving the judge

unqualified discretion over the choice of facts, his theory becomes susceptible to the Fallacy of

Undistributed Middle.

It is worth noting a very interesting occurrence related to the theory of Prof. Goodhart. In two

judgments, the difficulties related to Prof. Goodhart’s thesis were discussed and his thesis was

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after due consideration rejected.7 These two judgments are Pretoria City Council v. Levinson8

and Fellner v. Minister of Interior.9 In both the judgments, it was stated by the courts that the

analysis of Prof. Goodhart is fraught with its own difficulties. When the tribunal is consisted of

more judges than one, the court might have given more than one ratio decidendi and thus the

entire presupposition behind the thesis comes crumbling down.

7
J. L. Montrose, Ratio Decidendi and the House of Lords (1957) 20 M. L. R. 124.
8
Pretoria City Council v. Levinson, 1949 (3) S. A. 305 (A. D.).
9
Fellner v. Minister of Interior, 1954 (4) S. A. 523 (A. D.).

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CONCLUSION: AN ATTEMPT TO SAVE THESIS FROM ITS

OWN FALLACIES

In the foregoing discussions, multiple problems related to the analysis offered by Professor

Goodhart have been offered. The researcher found the thesis of Prof. Goodhart laden with

Confirmation Bias, as promoting the chances of erroneous reading and ultimately fraught with

the difficulties of Undistributed Middle.

A single thread has connected all the problems pointed out in the analysis. The problem arises

because of unusually strong emphasis on the opinion that is delivered by the judge and its role in

determining the ratio decidendi of the judgment. Whereas the supposition that the ratio of the

judgment cannot be found in the rule of law laid down by the court may be correct, ignoring the

actual decision of the court in resolving the issue before it seems to be unfounded.

The researcher agrees with the view offered by Professor Oliphant in his analysis that has been

used by Professor Goodhart to increase the reliability of his own thesis. In discarding the view

adopted by Professor Oliphant, the practical aspect of the developed jurisprudence does not

survive and the role of ratio decidendi seems to have been totally sacrificed to the demands of

academic correctness of the thesis.

By taking back the focus on the practical aspect of the decision of the court, the apparent

errors of the analysis of Prof. Goodhart seem to have been corrected.

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BIBLIOGRAPHY

1. A. Lakshminath, Judicial Process and Precedent in Indian Law (Eastern Book Company 2009).

2. Bindra NS, Interpretation of Statutes (Lexis Nexis 2017)

3. Cross Rupert, Precedent in English Law (Clarendon Press 1961).

4. Dias RWM, Jurisprudence (Lexis Nexis 2013).

5. Fitzgerald PJ, Salmond on Jurisprudence (Universal Law Publishing)

6. Singh GP, Principles of Statutory Interpretation (Lexis Nexis 2016).

7. Williams Glanville, Learning the Law (16th edn. Sweet and Maxwell – South Asia Edition

2019).

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