Judges Rule on the Basis of Law - Essay Example

Is it true that “Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times”? Name Grade Course Instructor’s Name (March 19th, 2014) Is it true that “Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times”? The recognition of the role of a judge in deciding a case is important both to the courthouse and to the public, to create a distinction between what the law requires and what the popular public opinion holds. The fundamental role of a judge is to preserve an independent judiciary, through applying both the rule of law and the fair application of law to all, regardless of the religious, social, political or the economic status and affiliation of the accused (Hasday, 2000:27). Thus, the ideal judge is an independent and impartial jury, who is dedicated to deciding cases solely on the basis of the applicable laws, without being swayed, influenced or persuaded by politics or the popular public opinion (Hasday, 2000:17). The discussion of the issue of public opinion is very important, because it serves to create the difference between the ideal judge as espoused by the law, and the real judge as influenced and determined by the real world circumstances. At this point, it might be important to pose and reflect on this fundamental question; if Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times, why then are there numerous circumstances where a judgment delivered by one court is overturned by the other, while both courts have access to the same law, and derive their contradictory rulings from that same law? The answer to this question point to the fact that, while the independent and impartial application of the law is the ideal definition of a judgment, the real definition is that there are further influential factors other than the law, which affects the ruling of a judge (Hasday, 2000:22). Therefore, this discussion advances the argument that judges do not rule on the basis of the law only, but are highly influenced by public opinion and pressures of the time. This analysis will apply a relevant case, R v R [1991] 3 WLR 767, to help advance the argument. In the case R v R, the defendant was charged with an attempt to rape his wife. The circumstance surrounding the case was that the couple had separated, but none of them had filed a legal divorce petition to have them separated by the law. The fundamental question that arose in the case was "Is a husband criminally liable for raping his wife?" p2. The ruling in this case overturned the exception of matrimonial rape from criminal conviction that had been provided by both the common law and the law of precedence in the case R v Clarence (1889) 22 QB 23. Under this case, the wife sued his husband for having a sexual intercourse and infecting her with gonorrhoea. The husband, in his defence, argued that under the provisions of the common law, the wife consents to sexual intercourse during a marriage, and thus the husband cannot be guilty of cohabiting with her lawful wife, since the wife agreed to grant unreserved matrimonial rights to her husband, and the wife therefore cannot retract the consent. The ruling held that in light of the provisions of the Crown (1736) vol. 1, ch. 58, which had been applied as common law, the wife could not retract her matrimonial rights to her husband unless they were separated by the provisions of the Acts of Parliament. Sir Mathew Hale had written "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent” p. 629. Therefore, the case was dismissed. Nevertheless, the ruling under the case R v R sought to create a new ground for matrimonial rape, through removing its exception from consideration as a criminal offense. The ruling observed that where there is agreement between the two parties in relation to ending the conjugal rights between them, or where the wife has clearly indicated her unwillingness to participate in sexual intercourse with her husband thus removing her consent, the subsequent engagement into sexual intercourse by the husband with the wife would amount to rape (Bennice & Resick, 2003:228). The same ruling was upheld in the ruling by the appellate court under the case R v R [1991] UKHL 12. This ruling upheld the departure from the common law exempting matrimonial rape from consideration as a criminal offense, through observation that the law needs to progress, and thus the circumstance leading to the establishment of the common law of 1736 that exempted marital rape from criminal conviction had changed with modernity. In the ruling, Lord Keith observed that, "the common law is, however, capable of evolving in the light of changing social, economic and cultural developments, p3. The observation by Lord Keith in the case R v R [1991] UKHL 12 is a major affirmation that the judges cannot only rule on the basis of law. It was a further affirmation that the public opinion and pressures of the times, in the form of what she referred to as “changing social, economic and cultural developments” are important factors that influences the ruling of the judges (Bennice & Resick, 2003:235). In this respect, the case warranted that since the common law and the law of precedence provided for the exception of matrimonial rape from consideration in criminal conviction, the judges should have solely been guided by such provisions of the common law and the law of precedence as set under the R v Clarence (1889) 22 QB 23, to overturn the ruling that provided for the conviction of the husband on the basis of attempted rape of his wife. However, under this circumstance, the judges were prone to the influence of pressures of modernity, as well as the influence of popular public opinion, which then held that if the wife removed her consent from cohabitation with her husband, it was her right not to be forced. In fact, as a matter of admission to the fact that judges are under the influence of public opinion and pressures of the times, Lord Keith, R v R [1991] UKHL 12, admitted that “marriage in modern times is regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband” p3. Therefore, the ruling delivered under the case R v R [1991] UKHL 12 was not done on the basis of any legal provisions, considering that both the common law and the laws of precedence had already contradicted the position of the ruling, which asserted the nullification of the exception of matrimonial rape from criminal conviction, while providing that matrimonial rape should be henceforth regarded as a crime and thus be liable for criminal conviction (Finkelhor & Yllo, 1985:77). The ruling purely applied the popular public opinion and the pressures of modernity, which completely disregarded the law, to indicate that the judges, other than applying the law, are not indifferent to the pressure of the time. Therefore, modernity was the basis of making the ruling in this case. The concept of modernity has required that the feelings of the wife and her state of health should be put into consideration in matters of matrimonial cohabitation, while also providing that the wife has the right to retract her conjugal consent, because modernity, according to R v R [1991] UKHL 12, defines the wife as an equal partner in marriage. Therefore, the concept of modernity and the public opinion shall continue to determine the way judges make rulings in different cases, since as opposed to the application of the law, reason is a major influential factor to the way judges make rulings in different cases. Reason has been established as the other factor that influences the ruling of the judges, as opposed to the sole application of the law. The concept of reason as a factor that influences the way judges make rulings was brought forth by Lord Keith, who in, in reference to matrimonial rape exception to criminal conviction under R v R [1991] UKHL 12 observed that “In modern times any reasonable person must regard that conception as quite unacceptable” p3. To this end, the judgments made by the judges are not purely made on the basis of the law or what the law has provided in relation to the concept of matrimonial rape exception to criminal conviction, but rather by the concept of reason. In this case, reason does not only look at what the law has provided, but it also looks at the circumstances surrounding the case as well as the facts of the case to reach a ruling (Hasday, 2000:47). This concept of reason and evaluation of the circumstances surrounding a case was also advanced by the ruling in the case R v R [1991] 3 WLR 767, where Mr. Justice Owen observed that the sets of circumstances prevailing in the case warranted the conviction of the husband. Therefore, while the ideal situation would require that judges should rule on the basis of the law, without any due consideration to public opinion or pressures of the time, the real situation demands that reason be applied as the basis of the judges making a ruling. It is through reason that the facts and the circumstances surrounding a case informs the nature of the offense committed, and thus determines the ruling deserved. Changing social attitudes is another factor that contributes to the manner in which judges make a ruling. This principle was established in the case CR v United Kingdom (1995) 21 EHRR 363. Under this case, the applicant had filed a defence that he was made to suffer retrospectively criminal responsibility, considering that the court had charged him with criminal responsibility in relation to raping his wife, when the law still provided for the exemption of marital rape from consideration as a criminal offense. The consideration of marital rape as a criminally liable offense was seen to be contrary to the provisions of Article 7 of the European Convention on Human Rights, which is a domesticated law in the United Kingdom. Section 1 of Article 7 of the ECHR provides that “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed” (Dekker & Hey, 2011:472). Therefore, the fact that the ruling in this case went contrary to the provision of this law, serves to indicate that judges do not apply the law solely as the basis of making their rulings. The ruling in this case established that judges are prone to the influence of the public opinion and the pressures of the time, so much so that they can even go against the provisions of the law itself, to deliver a judgment that contravenes the very law that they are meant to uphold and apply. In affirming the role of social attitude as a major influence in the way the judges make their decisions, Lord Lane observed that “common law…should adapt to changing social attitudes” , p. 1074. This simply means that, as opposed to the judges adhering to the provisions of the law in the rulings and thus bringing the pressure of the time to adhere to the legal provisions, the judges have instead adapted the pressures of the time as the priority over the provisions of the law. In this respect, they are forcing the law to change, so that it can adapt to the changing social attitudes. Finally, civilised norms have been established as the other major influence to the way judges make their ruling, instead of the pure and sole application of the law. The concept of civilised norms as a major consideration by judges while delivering a ruling was demonstrated in the case SW v UK (1995) EHRR 404. Under this case, the ruling observed that violating the provisions of Section 1 of Article 7 of the ECHR was not meant to neglect the freedom sought to be advanced by the law or to neglect the principle of ‘no punishment without law’ that the section of the law sought to establish (Dekker & Hey, 2011:472). Rather, the ruling observed that the departure from this provision of the law was to remove a common law that had become inoperable and offensive in the light of the civilised norms (Hasday, 2000:22). This was the same principle that was advanced by the legal provisions of section 2 of Article 7 of the European Convention on Human Rights, which provides that the “Article shall not prejudice the trial and punishment of any person…according to the general principles of law recognised by civilised norms” (Dekker & Hey, 2011:472). Bibliography Books & Journal Bennice, A. & Resick, A. (2003) ‘Marital Rape’, Trauma, Violence, & Abuse 4 (3): 228–246. Dekker I. F. & Hey, E. (2011). Netherlands yearbook of international law: Necessity across international law. (2011). Berlin: Springer. Finkelhor, D. & Yllo, K. (1985) License to Rape. New York: The Free Press. Hasday, J. E. (2000) ‘Contest and Consent: A Legal History of Marital Rape’, California Law Review 88 (5): 14-72. Legal sources R v R [1991] 3 WLR 767 R v R [1991] UKHL 12 R v Clarence (1889) 22 QB 23 Crown (1736) vol. 1, ch. 58, p. 629 CR v United Kingdom (1995) 21 EHRR 363, p. 1074 SW v UK, C v UK (1995) EHRR 404 Read More