Refining, Confining and Distinguishing Old Laws in English Legal System

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For many years, the English legal system has followed the doctrine of precedent and concreted itself by the rules of stare decisis. Courts were taught to follow previous judgments, in other words “to stand by decisions and not disturb the undisturbed.” However, over centuries, principles and decisions set and made by judges were refined, confined, and distinguished. Such decisions came about because judges in later cases felt the need to make amendments, due to specific reasons under crucial circumstances. As the world is developing, the laws adapting to bring consistency and fairness to future cases. For example, final verdicts upon cases concerning marital rape have evolved throughout the years. Once understood by the country from a legal doctrine, that a husband cannot possibly be accused or punished for nonconsensual intercourse against their wives, has now changed permanently. In History of the Pleas of the Crown (1736), Sir Matthew Hale illustrated vividly the following pronouncement:
“But 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.” Although Sir Matthew Hale’s legal treatise, presented in 1736, lacked essential support of any judicial authority, the person who occupied the office of Chief Justice for five consecutive annum was trusted to provide logical justification. Understood and accepted, Hale wrote that marriage grants the husband conjugal rights and this includes the freedom of sexual intercourse with his spouse as she has given up her body to him.

In later cases of R v Clarence (1888), judges arrived at the decision that the spouse of the “rape” victim was not guilty of assault due to the accepted rule that a woman through marriage agreed upon implied consent to any acts of sexual intercourse.1 Even-though the conclusion sided Hale’s statement, some



References: Appendix R v Clarence (1888) 22 QBD 23

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