Marianne Giles’ article on ‘Judicial law-making in the criminal courts: the case of marital rape’ explores the disadvantages and advantages on Judicial law-making. Giles carefully illustrates the impact judge made law has on marital rape, where the case of R v R made it illegal for a man to have sex with his wife without her consent. This essay will consider the disadvantages and advantages in order to evaluate if judge made law is objectional.
An advantage of Judicial law-making is that it can modernise law to fit today’s society. Giles conveys this as ‘It enables development of the law to take place in accordance with changing social conditions and attitudes. ’ This suggests that judge made law allows public policy to be influenced, so people will not lose trust in the judiciary. For example, R v R shows the ‘light of changing social, economic and cultural developments ’ as women are now seen ‘as equals with their husbands’ . However, it shouldn’t be judges who make the law on important issues such as rape and should be Parliament’s responsibility. Giles states ‘judges resist the reform the law in piecemeal fashion, Parliament is more likely to be pressurised into passing reforms .’ Therefore, Giles urges Parliament to make legislation that is reformed, so that there will be certainty within the law and that an ordinary lay person can understand and acknowledge.
Judges use statutory interpretation when trialling cases. Giles believes that in this case of martial rape the ‘decision here breaches the traditional principles of statutory interpretation. ’ This implies that the judges are going against Parliamentary Sovereignty and the Doctrine of the Separation of Powers. Judges are unelected and therefore it is undemocratic to have them create law. The use of the ‘purposive approach’ by judges leads to uncertainty as it is impossible to know when judges will use the rule. In the case of Knuller v DPP , Lord Simon states the court can ‘recognise the application of established offences to new circumstances to which they are relevant. ’ This suggests that Judges are creating offences that are not needed as people’s sexual relations should not be judged by judges. Giles proposes ‘a statutory definition of rape’ so that a ‘comprehensive definition of the offence ’ would make it clear that “lack of consent (and not violence) is the crux of the matter ”. However, purposive approach allows justice in individual cases and allows judges to respond to new technology; the case of R (Quintavalle) v SOS for Health . In which, Nevertheless, Parliament reforming laws are necessary so judges don’t have to guess what Parliament would do, as it creates uncertainty and thus is objectional.
Judicial precedent is where past decisions of judges create law for future judges to follow. Precedent has strict adherence which prevents the law from developing in response to social, economic and technological advances. The case of R v R illustrates that it took until 1991 for the law to change in regard to change to marital rape. Giles consolidates that ‘there is little doubt that the marital exemption rule had until this case been universally accepted as existing.’ This is outraged by John Gardener where in his journal he claims “We should all have negative emotional reactions to rape.” This affirms that judicial law-making does not allow reform to progress. On the other hand, through the use of Obiter dicta, seen in the case of R v Steele in which ‘breach of the husbands undertaking not to assault or molest his wife would have been enforceable by court, it was held to be equivalent to an injunction, and therefore sufficient to revoke consent ’.Thus, illustrating that there is a clear understanding of what is deemed within the limit of law and what is morally correct. Judicial precedent is somewhat objectional to the principle of law reform due to unreasonable time it needed.
In conclusion, Giles displays that judicial law-making is ‘objectional in point of principle as a means of law reform’. It is evident in her journal that law reform should be dealt with in parliament as it creates a black and white image that an ordinary lay person will understand. Furthermore, it is easier for lawyers to advise their clients on possible results as the law is stationary. In judicial law-making judges are not accountable, thus there are no restrictions to their means of principle resulting in uncertainty. Therefore, law reform should remain in Parliament, where they are held accountable for legislation and can be scrutinised when needed, in order to create trust within the legal system.
2019-11-28-1574980552