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Finding a Cases ratio decidendi a Practical Guide

The ratio is the fundamental propositions of law and legal reasoning that were essential to the judges decision. In the formalist system of precedent, the ratio contains the legal rule that binds future courts. Finding a ratio is an art, not a science. The ratio is just part of the wider reasons for judgment. It is the strict end product of sifting the bare skeleton of legal logic from the broader arguments given by a common law judgment. Its like distilling alcohol: cognac is very concentrated wine; wine is fermented grape mash. A ratio is like cognac very condensed, but has limited uses. A summary of the reasoning is like wine more complex flavours, more to drink. The original judgment is like grape mash colourful, full of raw material, but useless until you apply your mind to it! Note well: the ratio may expand or contract, as it is interpreted in later cases. It is a living thing. In subsequent related, but distinct cases, the limits of a precedent laid down in one particular case are explored, as the rules application and breadth is considered. This gives much needed flexibility to the system of precedent. ACTV v Commonwealth: a suggested ratio

(a) A law banning the broadcast of paid electoral advertising infringes on a freedom of communication about political affairs, necessarily implied by the system of representative government under the Constitution. (b) Exception - a legal burden on free political communication is justified if it is proportionate to, and adapted to, competing public interests. (c) Though aimed at a fear of money corrupting politics, a blanket ban on electoral ads is too burdensome.

Developing the ratio in ACTV 1. Clarifying the Exception in the ratio: Levy v Victoria The Victorian government regulated to ban anyone but duck-hunters on shooting-flats in duck season. Levy argued this breached his constitutional freedom to protest legal duck-shooting by demonstrating at the site of the killing. Held: The ban burdened political speech, but was reasonably adapted to preserve order and safety, and proportionate as Levy could try to get his voice heard elsewhere.

2. De-limiting the Freedom: McLure v Cth McLure was a poor, independent candidate. The media would give him no airtime to communicate his election policies. He claimed the election was invalid. Held: Sorry Mr McLure. ACTVs ratio only protects against laws that infringe on the freedom. (It is a formal, negative protection). It does not create a positive right to access media to make ones voice heard.
Further Reading

Catriona Cook et a (2001) Laying Down the Law, 5th ed, pp 86-93. or
Alastair MacAdam and John Pyke (1998) Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, ch 3 (especially paras [3.17-3.28] and [3.353.48].

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