One of the most challenging and daunting concept in the law of
precedent or stare decisis is discerning the ratio decidendi. The law
of precedent is not difficult to comprehend as it comprises of law;
based on the decisions of the courts dilated on the point of law. It is one of the accepted sources of law besides legislation anywhere in the world.
Under any constitution including that of Pakistan, the major duty (besides many other numerous engagements) of the courts is to interpret the law. The interpretation of law always settles a question of law based on original legislation, unless the law is contrary to the constitution of the country and is struck down by the courts.
The facts of any case are the focal point of any proceedings. The facts itself bespeak whether the question in dispute contains question of fact or question of law. The court’s jurisdiction is also changed in accordance with two situations.
The young lawyers often do not understand the importance of the facts. I did not even, at the younger age till I was guided “master the facts by reading it again and again and; which law you will have to apply will automatically come into your mind”.
The facts lead to the facts and the law. The question of fact has very limited jurisdiction and will exhaust before High Court, while the question of law can go up to the honourable Supreme Court of Pakistan.
This is for the reason that a question of law decided by the High Court and if no appeal is filed against the order to the SC, will become a law. This is also true in case of Tribunals, if they dilate on question of law and no appeal, for any reason is filed in HC.
Coming to discerning the ratio, it now looks simple. Any question of law culminating in settling a dispute about a law, by any court of law against which no appeal has been filed or could be filed; it becomes the rule of law as enunciated by the courts. This is also the case when all the appeals are exhausted including SC.
The ratio decidendi is the rule of law enunciated by courts. Generally easiest examples are given under the law of contract, in UK. There were numerous cases brought to the courts of UK in which the questions of law arose. As contract is a private law and can entail endless litigation, the UK courts were able to settle many rules which are still followed. The legislatures felt no need to enact new laws in the wake of these decisions: although they could do it under the constitution.
The invitation to treat under the law of contract is one of the examples how the ratio can be established by the courts in UK. The contract comprise of five constituents, the offer is the first one. What is an offer was laid down by the courts as against the invitation to offer. Anything displayed in a shop or advertised is not an offer but an invitation to give an offer called invitation to treat.
The ruling in case of Dr Mubashir Hassan in the contempt of court case has attained the finality, meaning that the ratio decided is a rule or law now. The government can bring the new contempt of court law in its own right and also change the constitution to fit its nefarious designs. But they will be unable to do so with the retrospective effect!!
The law has to be engulfed with mirch and masala, which is the best way to understand it!
Under any constitution including that of Pakistan, the major duty (besides many other numerous engagements) of the courts is to interpret the law. The interpretation of law always settles a question of law based on original legislation, unless the law is contrary to the constitution of the country and is struck down by the courts.
The facts of any case are the focal point of any proceedings. The facts itself bespeak whether the question in dispute contains question of fact or question of law. The court’s jurisdiction is also changed in accordance with two situations.
The young lawyers often do not understand the importance of the facts. I did not even, at the younger age till I was guided “master the facts by reading it again and again and; which law you will have to apply will automatically come into your mind”.
The facts lead to the facts and the law. The question of fact has very limited jurisdiction and will exhaust before High Court, while the question of law can go up to the honourable Supreme Court of Pakistan.
This is for the reason that a question of law decided by the High Court and if no appeal is filed against the order to the SC, will become a law. This is also true in case of Tribunals, if they dilate on question of law and no appeal, for any reason is filed in HC.
Coming to discerning the ratio, it now looks simple. Any question of law culminating in settling a dispute about a law, by any court of law against which no appeal has been filed or could be filed; it becomes the rule of law as enunciated by the courts. This is also the case when all the appeals are exhausted including SC.
The ratio decidendi is the rule of law enunciated by courts. Generally easiest examples are given under the law of contract, in UK. There were numerous cases brought to the courts of UK in which the questions of law arose. As contract is a private law and can entail endless litigation, the UK courts were able to settle many rules which are still followed. The legislatures felt no need to enact new laws in the wake of these decisions: although they could do it under the constitution.
The invitation to treat under the law of contract is one of the examples how the ratio can be established by the courts in UK. The contract comprise of five constituents, the offer is the first one. What is an offer was laid down by the courts as against the invitation to offer. Anything displayed in a shop or advertised is not an offer but an invitation to give an offer called invitation to treat.
The ruling in case of Dr Mubashir Hassan in the contempt of court case has attained the finality, meaning that the ratio decided is a rule or law now. The government can bring the new contempt of court law in its own right and also change the constitution to fit its nefarious designs. But they will be unable to do so with the retrospective effect!!
The law has to be engulfed with mirch and masala, which is the best way to understand it!
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