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Goodhart's Concession: Defending Ratio Decidendi from Logical Positivism and Legal Realism in the First Half of the Twentieth Century

THE FIRST half of the twentieth century brought an explosion of interest and debate among English jurists over the notion of the ratio decidendi of a case.1 There were at least three issues. First, Commonwealth judges were trying to figure out whether cases from courts of co-equal jurisdiction were binding on them, or merely persuasive authority.2 Second, both Commonwealth judges and English legal theorists were struggling with how to determine the ratio decidendi in cases where judges in a court issue separate opinions.3 What ratio, if any, can be derived from five separate judges’ opinions in a case? Third, is ratio decidendi a meaningful and useful concept in any event? The first issue seems to have been solved.4 The second issue is more of a Commonwealth problem than an American problem, and it has been suggested that English appellate courts follow the American practice of issuing joint opinions