<\/span><\/h3>\nIn theory, judges do not make or change the law. The judge applies the law to the facts and makes the decision.\u00a0 \u00a0This would breach the principle of the separation of powers. The sole power to make law is vested in the Oireachtas (parliament). In principle, the judge\u2019s role is limited to the application of the existing law to the facts of the particular case in hand.<\/p>\n
Notwithstanding the formal principle that judges do not make law, they may face choices in evolving existing principles and\/or applying them to new facts. In this limited sense, judges may \u201cmake\u201d law. The common law has developed and continues to develop through the doctrine of judicial precedent.\u00a0 In some cases, it might be fairly said that judges make the law as that the application of existing principles for new circumstances is not self-evident.<\/p>\n
The notion that the judges do not ever make law is recognised in somewhat fictional and old fashioned.\u00a0 There are many cases where a judge might legitimately decide a matter of law in one of a number of ways. In some cases, the judges may interpret the fact in one of a number of ways. This will often influence the way in this he articulates the law.<\/p>\n
The courts may recognise that the process does involve making law although it will not usually express it in those terms. \u00a0The rules and principles set out in judicial decisions on the interpretation of legislation constitute a precedent, in the same way as common law decisions on points of law that are not embodied in legislation.<\/p>\n
Common law rules are often amended by legislation.\u00a0 A series of \u201ccivil\u201d acts have made specific amendments to the pre-existing common law.<\/p>\n
Common law can be overruled by legislation, except to the extent that the Constitution limits the possibility.\u00a0 The Constitution takes priority to legislation made by the Oireachtas.<\/p>\n
<\/span>The Ratio Decidendi<\/span><\/h3>\nThe ratio decidendi is the principle of law on which the case is decided.\u00a0 It is not the decision in itself.\u00a0 It is the principle of law, of general application, which determines the case.<\/p>\n
It can be difficult to identify the ratio decidendi of a judicial decision.\u00a0 Traditionally, the matter was looked from the perspective of the judge who decided the case. The basis on which he expressly decided the case is determinative. However, decisions may have been too widely based or too narrowly based by the judge.\u00a0 Where there are several judges in an Appeal Court, each may base his decision on different principles.\u00a0 Accordingly, the overall basis of the decision is not easily discernible from a single judgment.<\/p>\n
In modern times, the reason for the decision, ratio decidendi is commonly determined by what the court as a whole has said, as viewed in later cases.\u00a0 What the judge or one particular judge has said is not necessarily the ratio decidendi. This objective approach allows a later judge to alter what might previously have been thought, to have been the ratio decidendi. Accordingly, the later judge may restrict the scope of an earlier case so that it does not apply to the current case before him \/her.\u00a0 Alternatively, he may widen the scope of the case so that it does apply and may thereby extend the scope of the previous case.<\/p>\n
The ratio decidendi involves applying the law to the material facts. In deciding the ratio of a case, the facts that the judge treats as essential, either expressly or impliedly, are material.<\/p>\n
<\/span>Finding the Ratio Decidendi<\/span><\/h3>\nIt may be necessary to deduce the ratio from what is expressly stated. The ratio may or may not be set out in the headnote of the official law report.\u00a0 The reporter\\’s interpretation of the facts and the application of the law to them may be too narrow,\u00a0 too broad or simply incorrect.<\/p>\n
There may be more than one ratio (reason) for the decision in a case.\u00a0 The view has been taken in some cases that where there are multiple reasons for the decision, the later courts may choose one over the other.\u00a0 However, the predominant view is that where there are multiple reasons, each is binding.<\/p>\n
It may be unclear as to what level of generalisation applies to the principle of the case.\u00a0 This depends on the level of abstraction with which it is formulated.<\/p>\n
In some cases, there may be no majority in favour of a particular basis or ratio decidendi.\u00a0 If in this case, it loses a certain amount of its weight as a precedent, if the judges in superior court give radically different reasons for their decision, it may be difficult to extract any ratio decidendi.\u00a0 They are consistent with the principle underlying the decision.\u00a0 The case may be opened to several interpretations.<\/p>\n
<\/span>Precedent<\/span><\/h3>\nPrecedent refers to the process by which a judge applies the principle of law to a case, by reference to the decisions of courts in earlier cases.\u00a0 In another sense, \u201cprecedent\u201d may refer to the earlier cases themselves and the principles of law embodied in them. The process involves the application of the principle of Stare decisis.\u00a0 This is a Latin expression reflecting the notion that the courts should stand by existing decisions<\/p>\n
The general position is that lower courts are bound to follow the decisions of superior courts. For example, the High Court must follow the principles in Supreme Court decisions, \u00a0even if it believes the decision is wrong in principle. A court will almost always follow the decisions of courts at the same level. Accordingly, a\u00a0 High Court judge will almost always the decisions of other High court judges.<\/p>\n
The principles in previous decisions which are binding are only those which are essential to the case.\u00a0 This is expressed by the Latin term \u201cratio decidendi\u201d, which broadly means the reason for the decision.\u00a0 It is the principle of law that is critical to the outcome of the case. \u00a0This is justified by the fact that the judge has positively addressed his mind to the actual facts of the case.<\/p>\n
The ratio decidendi is the law as applied to the key facts of the case. The reason for the decision may be stated at various levels of abstraction.\u00a0 The ratio decidendi will seek to state the principle in the broadest terms so that immaterial distinctions are ignored. The ratio decidendi is based on the actual facts of the case as found by the court.<\/p>\n