Judicial Reasoning And Decisions

Judges often couch their judgements in language which would suggest that their role is merely to declare the law (declaratory theory). It is obvious that judges in fact use a variety of reasoning techniques. Different judges may use different techniques at different times.

Inconsistencies generated as a result of different judges adopting different reasoning provides source for critique and evaluation by identifying reasoning used by a particular tribunal and to contrast this with the reasoning adopted by other judges. From this we can mark out:

Where there is a consistency in the approach taken by different judges and different courts.

Similarly, where there are inconsistent approaches.

How judges adopt a particular form of reasoning to avoid reaching a decision, or to reach a decision that appears more just or acceptable.

An understanding of how judges arrive at decisions and the reasoning employed helps with an appreciation of how law develops over time: alternatively to recognise why it is that law fails to develop in response to changing social conditions.

Aspects of Reasoning

Deductive reasoning: moving from a general proposition to a particular conclusion. Moving from a general observation to a particular conclusion in a particular case:

All men are mortal

Brian is a man

Brian is mortal

General observation is about man and mortality. Knowing that Brian is a man, allows the conclusion about Brian’s mortality. The reasoning relies on a premise, in this case that all men are mortal. Need for certainty about this general premise.

Assessment is entirely dependent on the truth or accuracy of what is said about mortality and Brian’s gender.

The utility of deductive reasoning, or reasoning based on general statements, is that it has the capacity to allow us to make predictions, for example:

If it rains you will get wet – major premise/observation

It is raining – minor premise

You will get wet – conclusion

Facts may be inaccurate, there is the possibility of conditionality (use an umbrella), but the logic of the reasoning process which remains valid. Where a conclusion is based on a process of deductive reasoning it is important to:

Assess the strength or weakness (reliability) of the premise (or premises) relied upon).

Consider whether the major premise is itself true.

Consider whether the major premise may be undermined by exceptions.

In law a particular conclusion may be based upon an assumption that some premise is true, that it is a fact. This assumption may be derived from an assessment of the law (statute/case authority). This assumption of the law is used to make predictions based on known similar facts.

There may be doubt about the law. The premises upon which judges rely may be challenged.

Inductive reasoning: a particular observation induces a particular conclusion. Example:

It has rained every year in October for the last five years therefore it will rain in October.

Accuracy of the statement may be confirmed. But there remains some doubt about the prediction. With inductive reasoning there is never absolute certainty.

Reasoning by Analogy

From a given set of factual circumstances, using analogy with other circumtsnces, to a prediction about what might be the significance of those circumstances. E.g. – from a set of facts in a legal case to a prediction of what might be the outcome of the case by reference to other similar cases. ,

At its simplest reasoning by analogy may be described by example:

A has characteristic X

B shares that characteristic

A also has characteristic Y

B must have characteristic Y

The example is simplistic but illustrative. Case A is similar to Case B so similar things must be true of Case B as they are of Case A.

Subjective element involved in deciding about similarities and differences, example:

Wood floats on water. Stone is like wood in that it an inanimate object, it does not move. Stone will float on water.

Stone possess a characteristic that is identified for wood, i.e. that it is inanimate. On the basis of the analogical method this might result in an inaccurate prediction. The selected similarity, i.e. that the fact that both are inanimate objects, is not a relevant characteristic.

The selection of relevant characteristics for comparison is vital to the efficiency of the analogical method.

Cases will often have similar facts but there will always be differences. Even in the most straightforward of cases, e.g., a common assault by punching, or a minor road traffic accident, precise facts – actors, conditions – will differ. But these differences may not always be relevant.

E.g. in most cases the fact that the actors are different (age, sex etc.) when it comes to application of the criminal law is irrelevant, but even here there are exceptions. There may not be any liability in the case of a child or a person under a disability.

In applying the analogical method to cases be aware of:

Relevant similarities.

Relevant differences.

In legal context some precedent or legal authority may prevent or rules out particular similarities or differences being relied upon.

A description of analogical reasoning in the law is given by Emily Sherwin:

Emily Sherwin, A Defence of Analogical Reasoning in Law, (1999) 66 Uni. Chicago LR 1179.

Sherwin describes the analogical method in relation to its application in law.

“… confronted with an unsettled question, the judge surveys past decisions, identifies the ways in which these decisions are similar to or different from each other and the question before her, and develops a principle that captures the similarities and differences she considers important. This principle in turn provides the basis for the judges own decision. Whatever one may think about the merits of analogical decision-making, there is little question that judges … and lawyers addressing judges often cast their analysis in this form.” p.1179

Sherwin’s refers to:

An unsettled question – a question of dispute which the judge has to decide.

A survey of past decisions – a review of authority,

Similarity and difference – relevant factors for analogy or distinction.

Need to capture some principle which provides the basis of his or her decision.

Returning to similarity and difference.

Similarity allows cases with similar facts to be decided based on the authority of previous decisions – on basis of established legal rules. Similarity and the analogical method provide a foundation on which to build a critique of judicial reasoning (comparing outcomes in similar cases, focussing on similarities selected or overlooked).

The importance of difference is that it allows cases to be distinguished one from the other. This is significant as:

It allows legal rules to develop for different factual situations.

It allows a judge to reach a different decision from that decided in a previous case even where this appears similar to the case which he or she is required to decide.

This means it allows the law to develop.

Like similarity, the identification of difference facilitates criticism of judicial decision making (cases should be distinguished so that different legal rules should apply, facts were not sufficiently different for a case to be distinguished).

Critique of the analogical method may include whether or not higher principle ought to be applied.

Sunstein uses the example of free speech in American states.

Cass R. Sunstein, On Analogical Reasoning, 106 Harvard Law Review (1993) 741.

Sunstein discusses the prohibition on banning free speech (Brandenburg v Ohio 395 US (1969)), and the possibility that some states might try to ban particular forms of free speech. Argues this is without principle unless differences in types of free speech can be identified as principled.

Sunstein compares a march by the Nazi party and a speech by member of the Klu Klux Klan. She points out that:

“… one difference between the Nazi March and the [Klu Klux] Klan speech is that the Nazi Party is associated with the holocaust. This is indeed a difference, but American law currently deems it irrelevant. It appears unprincipled – or excessively ad hoc – for the states to ban prohibitions on political speech except where the speaker is associated with the Holocaust.” p.745

Sunstein argues that to distinguish between the KKK and the Nazi party on the basis of an association with the Holocaust is unprincipled in the context of regulating of free speech. The principle of free speech is what informs the law in the United States. The identification of difference, even though this may be valid, cannot justify departure from the higher principle of free speech.

Analogical Reasoning: Advantages and Disadvantages

For many analogical reasoning is relatively unsophisticated and lacks depth or detail. But there are advantages:

It does not require actors to develop their own theories to account for convictions as decisions are based on previous decisions. Actors are free to simply refer to developed principles arising from past cases.

It promotes gradual evolution of the law over time giving stability. This is because where there are similarities with past cases the outcome is likely to be similar, but where there are some relevant differences this will account for change.

It fits with stare decisis. You will be aware of this principle, that judges should follow the decisions of previous cases where these represent an authoritative precedent.

It allows convergence on outcomes. Put more simply the law becomes predictable.

It requires strong justification to depart from authority. This means that where there is departure form a particular line of authority convincing and principled reasons will support such a departure.

It requires constant vigilance to ensure consistency. Judges and lawyers are always looking and checking to ensure that a particular cases falls within a line of precedent, or for other more suitable precedent.

Disadvantages.

The law remains static as judges are reluctant to depart from past decisions.

The pace of change is slow as the law changes only incrementally as judges are able to identify differences between cases.

The law fails to respond to social change which takes place at a more rapid pace than change in the common law.

It maintains decisions which may be base don judicial preferences or prejudices.

Is it true that the analogical method and precedent acts as a restraint on judges? Decisions and reasoning by analogy depend very much on the validity of the analogy selected, which is a matter for the judge to determine.

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A judge seeking to avoid a particular conclusion may determine the ratio of a particular case, the principle which it espouses, by a process of inductive reasoning from the facts of earlier cases – this introduces uncertainty.

A judge may formulate the ratio influenced by his or her opinion on what the law should be, it then follows that a judge may select a case which best fits his or her interpretation of the law.

As lawyers we may often feel that judges in the common law system make the law. As Postema comments:

“We expect judges to follow rules, but it appears in common law practice rules follow judges … it was Bentham who first used the term ‘judge made law’ hurling against English law as a term of contempt and abuse”

Gerald J. Postema, Philosophy of the Common Law, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, OUP, 2002), 588-621, p.589

The possibility that judges will influence the content of law even in a system of analogical reasoning, or perhaps because of the system, is a valid criticism of judicial decision making.

Judges may be criticised for failing to reflect normative or social values. Where the judge decides in accordance with established principle the process of reasoning by analogy begins with prior decisions rather than a judge’s own observations and intuitions. It is arguable that this:

Fails to reflect changing attitudes because past decision are, by definition, taken under a different set of social conditions.

And that it maintains bad decisions where these do not fit with present day values.

As Sunstein points out:

“… analogical reasoning usually does have a backward-looking, conservative, incremental character … it should be acknowledged that insofar as analogical reasoning takes current legal materials as the basis for reasoning, it can indeed be an obstacle to justified change through law.”

Cass R. Sunstein, On Analogical Reasoning, 106 Harvard Law Review (1993) 741. p.768

Would it be better to allow a judge to act on his or her intuition and employ ordinary moral reasoning?

Lack of Theory

A key criticism of analogical reasoning is that decisions are arrived at without reference to an overarching theory which provides moral content or principles. Judges are unlikely to justify particular outcomes based on a theory of law. Instead abstraction is from particular cases.

Path Dependency

Path dependence theory tells us that an outcome or decision, whether it be a decision taken by policy-makers such as politicians, or by judges, is shaped in a very particular way by decisions and outcomes which led up to it – by the path leading to it (‘history matters’).

Legal context: decisions taken by judges in the course of interpreting and applying statute or in the course of developing the common law will be influenced by decisions taken and the outcomes of cases which have taken place in the past.

Statement of the obvious: But important question is why are past decisions so influential? Why is precedent and past decisions so compelling?

Can path dependency explain the non-prescriptive nature of precedent within the common law? System of precedent allows the law to remain relatively stable but processes of change do take place. Law develops. Path dependency theory can explain change as well as continuity.

Path Dependency Literature

One of most influential writers on path dependency theory has been Paul David (economics). Work on dominance of the QWERTY keyboard system in word processing and computer technologies. David argues dominance of the QWERTY system due to processes of path dependency taking place in the manufacture of keyboards.

Paul A. David, ‘Clio and the Economics of QWERTY’, American Economic Review, 1985, 75(2), Papers and Proceedings of the Ninety-seventh Annual meeting of the American Economic Association, pp.332-337.

‘A path dependent sequence of economic change is one of which important influences upon the eventual outcome can be exerted by temporally remote events’ (332).

Events taking place earlier in time have an important influence on the outcome of sequences of events. Statement on its own is empty and unhelpful. Path dependency theory does not stop here.

Paul Pierson, ‘Increasing Returns, Path Dependence, and the Study of Politics’, American Political Science Review, 2000, 94(2), pp.251-267.

‘Broad conception’: history matters. Pierson is critical claiming this is unhelpful. Narrower definition (as suggested by Margaret Levi).

Levi argues (in the context of political decision-making) that once a once a state has adopted a particular path (policies), costs of reversal are high. Different choices can be made but ‘entrenchments’ of institutional arrangements will obstruct easy reversal of initial choice.

Pierson, notes that once particular courses of action are adopted they can be virtually impossible to reverse. Political development punctuated by critical moments or junctures that shape basic contours of policy and therefore social life.

Increasing returns: Pierson uses to explain path dependency. Steps taken in one direction induce movement in the same direction. Benefits of continuing down a particular path increase – more likely that that path will be selected in the future (even in case of inefficient outcomes).

Features of increasing returns:

Large set-up or fixed costs.

Learning effects.

Coordination effects.

Adaptive expectations.

Pierson applies path dependency to politics. Useful in analysis of law as Pierson refers to social institution, politics, political activity and social policy. Refers to: ‘institutional constraints’; policies and constraint on behaviour, and coercive powers signal to actors what has to be done.

How are these concepts relevant to the law?

Paul Pierson, ‘Not Just What, but When: Timing and Sequence in Political Process’, Studies in American Political Development, 2000, 14, pp.72-92.

Process of increasing returns induces self-reinforcement or positive feedback. Initial moves in a particular direction encourage further movement along the same path. The ‘road not chosen’ becomes increasingly unreachable as an alternative.

Pierson notes that a critical feature of path dependent processes is the relative ‘openness’ or ‘permissiveness’ of early stages in a sequence compared with the relatively ‘closed’ or ‘coercive’ nature of later stages.

James Mahoney, ‘Path dependence in sociological history’, Theory and Society, 2000, 29, pp.507-548

Mahoney argues that ‘path dependence characterizes specifically those historical sequences in which contingent events set into motion institutional patterns or event chains that have deterministic properties’ (507). Also refers to self-re-enforcing mechanisms (increasing returns), and power and legitimation mechanisms (509).

Discusses reactive sequences – temporally ordered and causally connected events. For a series of events to be path dependent they must be contingent rather than simply causally linked, and must possess a quality of ‘inherent sequentiality’ (509).

Mahoney seeks to conceptualize path dependence: broad conceptualization that essentially entails the argument that past events influence future events. Refer’s Sewell’s influential definition, path dependence means ‘that what has happened at an earlier point in time will affect the possible outcomes of a sequence of events occurring at a later point in time.’

Most historical sociologists employ a more specific under-standing of path dependence – past choices affect future processes.

Path-dependent analyses minimally have three features: [1] path-dependent analysis involves the study of causal processes where early decisions are highly influential; [2] early historical events are contingent occurrences that cannot be explained on the basis of prior events; [3] path-dependent sequences are marked by relatively deterministic causal patterns.

Self-reinforcing sequences: initial steps in a particular direction induce further movement in the same direction such that over time it becomes difficult or impossible to reverse direction.

With self-reinforcing sequences, periods of institutional genesis correspond to ‘critical junctures.’ Critical junctures are characterized by the adoption of a particular institutional arrangement from among two or more alternatives. ‘Critical’ because once a particular option is selected it becomes progressively more difficult to return to the initial point when multiple alternatives were still available.

Power explanation: actors make decisions by weighing costs and benefits. (refers to power of elites and is not directly relevant to analysis within the law).

Legitimation explanation: grounded in actors’ subjective orientations and beliefs about what is appropriate or morally correct (moral approval to acquiescence with status quo).

Reactive sequences: follow a different logic from that of self-reinforcing sequences. Reactive sequences are marked by backlash – perhaps to reverse early events. Early events trigger subsequent development not by reproduction but through reaction and counter-reaction.

Adrian Kay, ‘A Critique of the Use of Path Dependency in Policy Studies’, Public Administration, 2005, 83(3), pp.553-571.

Process is path dependent if initial moves in one direction elicit further moves in that same direction. Path dependency is a process that constrains future choice sets. It is not a story of inevitability in which the past neatly predicts the future.'(554)

Path dependency is about stability: observations of change challenge this notion. Critique of path dependency is that it is rather better at explaining stability than change. Picking up on argument by Thelen (1999) who argues that path dependency is too deterministic.

Taylor C. Boas, ‘Conceptualizing Continuity and Change: The Composite-standard Model of Path Dependency’, Journal of Theoretical Politics, 2007, 19(1), pp.33-54.

Analysis of institutional development needs to account for both continuity and change over time. Problem with path dependence which emphasizes lock-in is that political institutions change over time, exhibiting flexibility rather than rigidity (35). Suggests a composite-standard model of path dependency to account for change to illustrates ‘how incremental changes in political institutions can translate into fundamental transformation over time (35).

Distinguishes inflexibility (limiting deviation within a path) from lock-in (difficulty in switching paths).

Law and Path Dependency

Mark J. Roe, ‘Chaos and Evolution in Law and Economics’, Harvard Law Review, 1996, 109(3), pp.641-668

Roe notes that the evolutionary paradigm (evolution to efficiency) has a strong grip on law scholarship.

Uses ‘road’ metaphor. Occasionally path dependent road becomes so costly that society rips it up and builds a new road. Where inefficiencies are built into a system path dependency helps us understand why they remain (646).

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Weak form path dependence – two options (or more), both equally efficient. Path dependence explains why society perseveres with one but says nothing about relative efficiencies.

Semi-strong form path dependence – saved costs are outweighed by costs of change. Once society has established its path the costs of change might outweigh advantages that accrue.

Strong form path dependence – costs of change would be worthwhile but there is still resistance to change.

Notes that path dependence supposes slow change through time (punctuated equilibrium). Where path dependence is strong-form change is desirable but society is stuck due to lock-in effects.

Oona A. Hathaway, ‘Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System’, Iowa Law Review, 2001, 86(2), 601-665.

Despite recognition of role of history in legal development little is known about the specific ways in which it matter – path dependency provides analytical tool.

Outcome or decision is shaped in a very particular way by decisions and outcomes which led up to it (path leading to it). In the common law each legal decision increases the probability that the next will take a particular form. Early decisions can lead to lock-in (resistance to change). Inflexibility can lead to inefficiency. Opportunities for change arise at critical junctures (guides practitioners to concentrate their resources on altering the path of the law at given instances).

‘The past forms the point of departure for the present. The present, in turn, forms the point of departure for the future. Therefore, the historical path leading to each new outcome or decision directly shapes that outcome in specific and systematic ways (663).

Several variants to path dependency. Increasing returns path dependence growing out of the economics literature. In law it is less costly to continue down a particular path than it is to change to a different path. Identifies four characteristics of increasing returns: large set-up costs; learning effects; coordination effects; and self-reinforcing or adaptive expectations. Features of increasing returns are the indeterminacy of outcome at the outset, the increasing prospect of lock-in or inflexibility. The initially selected technology will become locked-in even if there is an equally developed alternative which could have been superior.

Evolutionary path dependence based on a Dawrwinian notion of gradual and progressive evolution, or an alternative conception based on new evolutionary theory where periods of stasis are followed by sudden change or ‘punctuated equilibria’. As in increasing returns path dependence it is difficult to predict outcomes of change in advance. This is because punctuated equilibria are marked by contingency. This is because the variables are not necessarily known in advance. Because of this it is not possible to predict the arrival of rapid change in advance. But once change has occurred the theory does predict a period of stability. Both forms of evolutionary theory agree that changes in the past directly determine the possibilities for the future.

Describes the system of precedent within the common law. Most striking feature of path dependence affecting the common law is increasing returns due to the reliance on precedent. Process of judging generates learning effects. Common law generates significant reinforcing effects and adaptive expectations. This includes amongst litigants who will select their cases to fit with particular precedents to avoid becoming losers. This pushes the law further in the same direction and discourages litigants form bringing cases in case they lose. Judges act on incomplete information about future outcomes of their decisions, this is ‘bounded rationality’.

Small early changes in the law can have significant future ramifications. Early cases on a legal issue become important because the path of the common law is locked in at an early stage. A consequence of path dependency in the law is that of lock-in or inflexibility. A further feature of path dependence is indeterminacy of outcome. Early cases are unpredictable but not inexplicable. This does not mean that there is not one correct rule, but rather that at the outset it cannot be predicted in which direction the law will move.

Evolutionary theory of path dependence invoked most frequently in legal literature. ‘In a common law system the decision in each case draws on the stock of existing precedent’. Economics scholars draw on the evolutionary theory to claim that competition leads to the best results (the evolution to efficiency rule). But evolution to efficiency paradigm ignores the path-dependent nature of legal change in the common law system. Each choice is made within a constrained set of circumstances.

Evolution to efficiency theory of law fails to recognize reality but is also a misunderstanding of evolutionary theory. Argues that there is an inbuilt tendency toward resistance in the common law. Also discusses new evolutionary theory and punctuated equilibrium or periods of rapid change. This can correspond with change in the law when, for example, a line of authority is developed by the lower courts and is then appealed to the higher courts. This moment may be seen as a punctuation of the biological model. In this sense new evolutionary theory bears some resemblance to critical junctures or critical moments in path dependence. Critical junctures arise as moments of rapid change followed by a period of stability, the legacy of each critical juncture remains intact until some later critical juncture arrives to change and shape the political and institutional arrangements. History constrains critical junctures but each provides an opportunity for sweeping change .

Sequencing path dependency.

‘Litigants seeking a significant impact on the law should seek out (or attempt to create) punctuations, for it is only during punctuations that major change is possible (650).

Marital Rape

At one time the common law provided that a man could not commit the crime of rape on his wife. Rape was not possible within the confines of a lawful marriage.

The rule stems from a statement attributed to the Lord Chief Justice, Lord Justice Hale, in the middle of the 18th century. Lord Hale described that law as being that:

‘… the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”

This extract is attributed to Lord Justice Hale in History of Common Pleas, (1736) or The History of the Pleas of the Crown. It was later repeated in other sources, for example: Archbold’s Pleadings and Evidence in Criminal Cases (1822).

This is not the law today. The process of change was slow.

R v Clarence (1888) 22 QBD 23.

In this case a wife made allegations of assault against her husband. This is not a case where rape was alleged. Instead the wife claimed that the husband had carried out an assault under s.20 and s.47 of the Offences Against the Person Act 1861).

Justice Wills said:

“If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority.”

The decision in Clarence was that the husband was not guilty of assault was based on the Court’s assessment of the law which included an acceptance of the rule that a woman gives implied consent to the act of sexual intercourse.

R v Clarke (1949) 2 All ER 448, [1949] 33 Crim App R 216.

In this case a man was charged with the rape of his wife at a time when the couple were still married but there was separation order in place. The separation order had been based on the ground of the husband’s persistent cruelty. The separation order contained a clause that the wife was no longer bound to cohabit with the husband. At the time of the alleged offence she in fact was not cohabiting with her husband. Defence counsel applied to the court to quash the charge of rape on the ground that it did not disclose any offence known to the law.

Justice Byrne held that there was a general proposition of law that a husband cannot be guilty of the rape of his wife.

‘No doubt, the reason is that on marriage the wife consents to the husband’s exercise of the marital right of intercourse during such time as the ordinary relations created by the marriage contract subsist between them.’

The consent to marital intercourse which was implied and given by the wife at the time of the marriage was revoked by the separation order.

R v Miller (1954) 2 QB 282.

In this case a wife left her husband and filed a petition for divorce on the ground of adultery. The hearing of the petition for divorce was adjourned for the husband to attend. After this adjournment of the divorce case the husband met with the wife and had intercourse with her against her will.

The court held that the consent given on marriage was not revoked and the husband could not be guilty of rape. However, the court also held that the husband was not entitled to use force or violence for the purpose of exercising the right to sexual intercourse. If the husband did use force he committed an assault.

R v O’Brien (1974) 3 All ER 663. A circuit case.

In this case the wife had obtained a decree nisi as part of the process of obtaining a divorce. A few days later the husband had sexual intercourse with her without consent.

It was held that applying the dicta in Clarke and in Miller the effect of the decree nisi was to remove the implied consent given on marriage.

R v Steele (1977) 65 Cr. App R. 22. Court of Appeal.

A husband had been found guilty of the rape of his wife and assaulting her. He appealed. The wife had been seeking a divorce and had made an application in the county court for an injunction to prevent the appellant from approaching or molesting her. The husband had given an undertaking to the Court not to assault, molest or otherwise interfere with his wife, and not to communicate with her in any way whatsoever except by written correspondence. However, the husband went to where his wife was living, broke into his wife’s room and had sexual intercourse with her without consent.

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Lord Justice Lane held that as a general principle, there is no doubt that a husband cannot be guilty of rape upon his wife. Once again the judge referred back to Hale and the Pleas of the Crown.

The question which the Court had to decide was whether the parties had made it clear, by agreement between themselves, or had the Court made it clear by an order or something equivalent to an order, that the wife’s consent to sexual intercourse with her husband implicit in the act of marriage, no longer existed?

The court then noted that a separation agreement with a non-cohabitation clause, a decree of divorce, a decree of judicial separation, a separation order in the justices’ court containing a non-cohabitation clause and an injunction restraining the husband from molesting the wife or having sexual intercourse with her were all obvious cases in which the wife’s consent would be successfully revoked. The mere filing of a petition for divorce would not be enough, or the issue of proceedings in anticipation of an order would not be enough.

Lord Justice Lane then went on to find that the granting of an injunction to restrain the husband would be enough because the Court is making an order wholly inconsistent with the wife’s consent.

But in this case there was not an injunction but an undertaking in lieu of an injunction. However the court held that an undertaking is the equivalent of an injunction.

R v R [1991] 1 All ER 747.

Mr Justice Owen accepted, that it is implied or presumed that a wife consents to sexual intercourse when she marries her husband. He held that an agreement between the parties, whether formal or informal, is sufficient to displace the marital exemption to the law of rape and that this may be implied from conduct. Furthermore, the judge held that a wife may unilaterally withdraw her implied consent to sexual intercourse by a withdrawal from cohabitation accompanied by a clear indication that her consent to sexual intercourse has been terminated.

The judge concluded that Hale’s statement was true in general terms. He recognised that Hale, as Chief Justice, would be regarded as a strong authority.

The judge then went on to say that he did found it hard to believe that:

‘… it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse. If it was, it is a very sad commentary on the law and it is an extremely sad commentary upon the judges in whose breasts the law is said to reside.’

The position was summed up by Mr Justice Owens as an implied agreement to a separation and to a withdrawal of consent to sexual intercourse, and a unilateral withdrawal from cohabitation. This was sufficient to provide an exception to the marital rape exemption.

R. v C (Rape: Marital Exemption) [1991] 1 All ER 755. Circuit decision.

In this case the husband of the victim was charged with, amongst other things, rape on his wife. The trial judge, Mr Justice Simon Brown was asked to give a ruling on whether the husband could be convicted of the rape of his wife. The husband was living apart from his wife at the time of the alleged offence but there was no formal separation agreement.

The judge held that there is no ‘marital exemption’ to the law of rape and accordingly a husband may be convicted of the rape of his wife if she does not consent to intercourse. This was regardless of whether he is living with or apart from his wife.

The court recognized that the issue of marital rape had produced a growing body of legal decisions as well as academic comment. The judge declined to go through the history of the marital rape exemption and instead sought to look at the different approaches a court might take when dealing with the question of relevant exceptions to Hale’s proposition.

R v J (Rape: Marital Exception) (1991) 1 All ER 759.

The primary submission on behalf of the defence was that section 1 of the relevant statute covering the offence of rape, namely the Sexual Offences (Amendment) Act 1976, had referred to rape as ‘unlawful’ sexual intercourse. On this basis it was argued before the judge, Mr Justice Rougier, that Parliament must be taken to have preserved the rule of marital immunity.

The judge appeared to accept the force of the argument that unlawful meant outside the bounds of marriage.

R v R (Rape: Marital Exemption) [1991] 2 W.L.R. 1065. Court of Appeal.

The Court of Appeal recognized at the outset that the issue before the court raised the question whether there is any basis for applying a principle which been long supposed to be part of the common law, and whether that principle still represented the law in either a qualified or unqualified form.

The court, as always, began with Hale’s proposition. The court noted that Hale appears to have founded his proposition on grounds that: (a) that on marriage a wife “gave” up her body to her husband; and (b) that on marriage she gave her irrevocable consent to sexual intercourse.

There is then an indirect recognition of path dependency by Lord Lane. He refers to the ‘historical background’ as setting the scene for the decision of Court of Appeal in R v R.

The literal solution. This would mean that the Act of 1976 defined to include the word “unlawful” making it clear that the husband’s immunity is preserved, there being no other meaning for the word except “outside the bounds of matrimony.”

The compromise solution. The word “unlawful” is to be construed in such a way as to leave intact the exceptions to the husband’s immunity which have been engrafted on to Hale’s proposition from the various decisions of the lower courts and the Court of Appeal in Steele. This would also mean that the law is to be construed in such a way as to allow further exceptions to arise.

The radical solution. This was that Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife in modern society. In other words it is repugnant and illogical in that the law permits a husband to be punished for treating his wife with violence in the course of rape, but not for the rape itself which is an aggravated and vicious form of violence. T

The Court of Appeal concluded that the common law rule no longer even remotely represents what is the true position of a wife in present day society and that the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment. This meant the court had to consider what was meant by the word unlawful in the 1976 Act. In the end it decided that it was either meant to preserve the position in common law and allow further development, or it was surplus. In either case it was for the court to decide what this meant in the context of marital rape.

The court then had to decide whether, despite the view it had expressed on the relationship between statue and the common law, the area of marital rape was an area which the court should leave to Parliament. In answer to this question the court decided that it was not in fact creating a new offence but was rather removing a common law which had become anachronistic and offensive.

R v R [1991] 3 W.L.R. 767. House of Lords.

Lord Keith of Kinkel gave the leading judgement. In addition to the usal summary of the law Lord Keith noted that:

‘A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. It cannot be affirmed nowadays, whatever the position may have been in earlier centuries, that it is an incident of modern marriage that a wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. There is no doubt that a wife does not consent to assault upon her person and there is no plausible justification for saying today that she nevertheless is to be taken to consent to intercourse by assault.’

The judge considered Hale’s proposition and stated that on grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times.

SW v United Kingdom (1996) 21 EHRR 363

This case involved an appellant who had been found guilty of raping his wife and another who had pleaded guilty to the attempted rape of his wife.

The European Court of Human Rights noted that as a matter of English common law a husband had once been immune from prosecution for the rape of his wife – it too referred to Hale’s proposition. It further noted that this was because of the belief that consent to sexual intercourse was thought to be inherent in the contract of marriage. The ECtHR found that the importance of the common law immunity had been steadily decreasing by virtue of a series of judicial decisions. This had the effect of making the immunity subject to an increasing number of exceptions, and had eventually caused it to disappear altogether.

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