The Case Of Marital Rape Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Essay Title: "There can be no real argument about it:judges

make law. The declaratory theory is more or

less nonsense."

Exam Candidate number: D01420

Student Registration Number: 120379116

There was a time when it was thought almost indecent to suggest that judges make law. It was then thought that judges only declared it. English courts have traditionally attempted to maintain a limited interstitial law making role by deferring to parliamentary legislation in light of parliament’s intention. It was a powerful fairytale rooted in British constitutional history where the judges sometimes were made to produce bad and absurd decisions in courts. In other words it was a constitutional fiction saying that judges merely declared what law was as though it was already there and merely needed to be discovered. But today it is admitted that courts create law and not merely declare it. Although judges try to limit their law making, their law making power is subordinate to that of parliment.

Leading law reformers such as Lord Scarman and Lord Woolf brought light to this fairytale believed by all the learned judges throughout England and Wales. Lord Scarman, in his speech in McLoughlin Appellant v O’Brian (1983)argues that judges do make law. In this case, the judge was to adopt the principles of the law to allow a decision to be made on the facts in hand which may involve the creation of some new law.

One of the best examples for judicial creativity is seen in Regina v R., simply known as the case of R.. The facts were that the wife had left her husband and had returned with their child to live with her parents. The husband had indicated that he wanted a divorce, but a few weeks later he broke into his wife’s parents’ home and attempted to have an intercourse with his wife without her consent, using force and causing actually bodily harm. Here the defendant appealed to the court of appeal on the point of law as to the circumstances in which a husband can be found guilty for raping his wife. The Lord Chief Justice gave his judgment with the belief that "the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim." Given altered social attitudes, the time was right for change.

It is clear that the appellate judges believe that they have the power to change what common law is, as the approach of the House of Lords follows very closely that of court of appeal. This goes one stage further in theory than the approach of Simon Brown J. in following the declaratory theory of re-explaining what law always was.

Lord Keith declares that the common law is capable of evolving in the light of changing social, economic and cultural developments. In D.P.P. v Shaw, theHouse of Lords declared that it had the power to create new common law offences in order to protect public morality. This statement was highly criticized and finally discredited on that point by Knuller. The problem with this approach is that in such a case as this, it means the House of Lords comes perilously close to creating a new criminal offence. The peculiar position of the criminal law in relation to judicial creativity has been analyzed by several writers to highlight particular problems. Ashworth argues that judicial creativity can be justified in terms of the major harm caused by the relevant behavior and the openness of judicial arguments. He also questions whether it is practical to restrict judicial law making to a minimum. In a letter Marianne Giles says that she is in favour of the "Simon Brown" approach or the "Stallard" approach. Her argument is that it would have kept the constitutional implications to a minimum. However in the context of the 1976 statute and the purposive approach to interpretation, such arguments have just a limited force.

In Lee v Whitehouse and Whitehouse the courts decided on the case without limiting themselves to a certain framework. Here although the new flat the defendant got did comprise of suitable alternative accommodation, on evidence, however, the judge found out that the defendants were socially and emotionally attached to their flat, so that the other flat would "never be the same." He also found out that the claimant did not need to sell the property with vacant possession in order to raise sufficient pension funds. He identified the role of the court as being to "balance the reasonableness" of the claimant wishing to sell it. The judge found out that balance came down in favour of the claimant and the granted possession, given the acknowledged social and emotional attachment that the defendants had their flat and possession in order to raise sufficient pension funds, an assessment based on the effects of the parties of making or not making an order for possession pointed unerringly to the conclusion that it was not reasonable to make an order.

With time, the generally deferential and sheltered judicial law making role of the English courts which turned a new leaf amidst all its criticisms, was dramatically changed, however, with the Human Rights Act 1998, which incorporated the human rights guarantees of the European Convention on Human Rights into domestic law. Suddenly the law making activities of the English judges were at once both expanded and pushed into a more public forum, requiring the judges to adjudicate difficult social and moral questions with widespread implications.

Common law appellate courts do not ordinarily hear new evidence and in many cases or have no direct contact with the parties. Observers might liken appellate proceedings to an academic debate between lawyers about how a legal rule should be currently applied and what direction the law should take.

But in the recent Prudential Assurance Case, the law lords understandably felt unable to change an ancient and pointless rule of land law. Lord Browne Wilkinson said that,

"if by overruling the existing authorities, this house were able to change on the law for the future, I would have urged your Lordships to do so..."

The issue raised by this was whether the House of Lords should, like the supreme court of the United States and some other supreme courts, exercise a power to overrule decisions prospectively, as a way of allowing the law to develop. Such judicial power was favoured by some law lords like Lord Simon of Glaisdale and Lord Wilberforce. Their idea was that if power of prospective overruling was used wisely and very sparingly, it’s a useful means of enabling the courts to change the law without disturbing the settled interests and expectations. So far from endangering legal certainty, prospective overruling respects legal certainty. Admittedly, the exercise of such a power makes it crystal clear that the judges are acting as law makers but that is surely no more than recognition of the actual world.

From the early 1960s, led by Lord Denning, Lord Reid and Lord Wilberforce, they have breathed new life into English Administrative Law. They have abolished outdated technical rules of legal standing that had prevented pressure groups and public spirited individuals from bringing important matters to judicial review courts to indicate the rule of law and get unlawful conduct stopped, although there had being a recent retreat in this area.

These examples of wise and courageous law making represent an unprecedented extension of judicial review of the exercise of public powers in this country. However, in making these changes the judges have been careful not to usurp the powers of the parliament or of the administrator. They have avoided imposing legalistic requirements which would have meant that the administrative process might have been stultified by what professor Stanley de Smith described as "a succession of judicial controversies". The judges have subtly altered the balance between the three branches of government and the relationship of the courts to the government and the parliament.

So if the judges had not used their law making powers to develop greater judicial protection for the individual against the misuse of public powers, we can be certain that no government would have sought to persuade the parliament to do so. If the judges had not led the way, uncontrolled discretion would have remained the distinctive hallmark of public administration in England.

At the same time, the British membership of the European Community is profoundly altering the constitutional role of British Judges as law makers by widening the scope of judicial review of substance and merits as well as of form and procedure. Where the community law reigns supreme, English courts have to give effect to its supremacy over any inconsistent statute or rule of law. The English have not yet recognized the European principle of proportionality as an independent ground of judicial review of the excessive use of lawful power: that is, the principle which requires that the decision maker should only use objectively necessary means of attaining legitimate ends.

According to the Orthodox approach where the judge is considered to be a more "executor of law" the main function of a jurisdiction lies in deciding a given case in accordance with the law. The conception also affects the practice of international judges to append separate opinions. From a different perspective a judge is not meant to limit him or herself to the settlement of the dispute in hand, but should, where possible, identify the issues of a particular interest and in this respect make general pronouncements that may enrich the law. This is the way judicial activism may be carried out and promote the progressive development of both domestic and international law.

At the end we can clearly see that "there can be no real argument about it; judges make law. The declaratory theory is more or less nonsense". The European court of justice has now become increasingly bold and creative in requiring effective national remedies for the individuals who suffer as a result of state’s failure as a legislator. As an impact of these far-reaching decisions, the British judges will increasingly be called upon to act as law makers, to adjudicate as constitutional judges and to fashion new remedies for the citizens of Europe within their jurisdiction.