How well does the ratio decidendi of R v Brown (1993) 2 ALL ER 75 meet the eight criteria described by Lon Fuller as intrinsic to the 'inner morality of law' and which he considered 'essential to maintain any system of law. ' (1964:4) Identifying the basic building blocks required to construct a well-oiled legal system is the subject of much legal debate. Lon Fuller's contribution to this debate, as outlined in his 1964 book, 'The Morality of Law'1, is a particularly valuable one and specifies "eight kinds of legal excellence toward which a system of rules may strive.
These 8 criteria can be seen as part of a procedural natural law approach rather than a substantive one. Thus, they should be viewed as procedural bulwarks 'essential' in 'maintaining any system of law. '3 Law-makers may occasionally breach any of the eight desiderata, fuelling controversy and concern as to the damage caused to the law. The ratio decidendi in R v Brown, a criminal case concerning consensual sado-masochistic torture, did undoubtedly provoke controversy and accusations of bad law. However, determining whether it breached any of Fuller's eight standards is slightly harder to fathom.
Firstly, as this essay will attempt to do, the actual ratio must be procured from the case. This in itself is by no means straight-forward owing to its 'slippery' nature which makes it difficult to identify in any case. It will be argued the ratio should be interpreted in a broad-sense, rather than one simply focussing on sado'masichistic activity. Secondly, this ratio will be placed alongside each of Fuller's eight criteria in order to establish how well it meets them. It will be contended that the ratio falls short on several of the 8 criteria.
Locating the ratio decidendi, the only binding element of a case as precedent, in R v Brown involves finding the 'enunciation of the reason upon which a question before a court has been decided', 'detached or abstracted from the specific peculiarities of the particular case. 4 Clearly, we must look to the majority decision and examine the reasoning of the judges for the decision rather than simply examine the headnote. Initially, the ratio appears to be restricted to there being 'no defence of consent for sado-masochistic encounters….resulting in offences under ss 47 and 20 of the Offences against the Person Act Act.
(Section 20 and 47 refer to 'unlawful and malicious wounding' and 'any assault occasioning actual bodily harm respectively. '6) Many journals similarly focus simply on the 'consent of willing recipient of sado-masochistic violence not constituting a defence. '7 However, when we look deeper into the case at the 'enunciation of the reason' behind the conviction of the appellants, we are constantly pushed by all of the majority judges towards the 'public interest.
Indeed, Lord Templeman explicitly states the case 'can only be decided by considerations of policy and public interest. ' The primacy of 'public interest' rationale for the decision 9 is also emphasised by Lord Jauncey who believes that rather than being merely ancillary, it 'limits the extent to which an individual may consent. '10 Lord Lowry, the other majority Law Lord, also takes the view that in the event of ss20 and 47 being violated, 'a factor directed to the public interest is needed. '11 The two dissenting judges, Lord Slynn and Lord Mustill, too concur that 'in the end it is a matter of policy.
The pivotal role of this factor is due to the fact that consent to breaches of sections 20 and 47 is 'no answer' 'unless a well-known exception. '13 Deciding whether sado-masochistic sex is one of those 'exceptions' subsequently left the decision hinging on this, the judges' 'arbitrary choice'14 The failure of the judges to cite any 'enunciable reason' for the decision other than 'public interest' compels the formation of a broader ratio. i. e a breach of ss20 or ss37 'without good reason' is 'unlawful'. The 'consent of the victim is irrelevant.
This broader interpretation, as opposed to the narrower conception involving just sado-masochistic sex, is more suitable as it is the only reason which can be 'detached or abstracted' from the case. Restricting it only to the type of sexual activity in the case would not be 'detached or abstracted' from the case's 'specific peculiarities. ' Helping confirm that the ratio should focus rather on the 'good reason' is the criticism often levelled at the case that it 'does not offer much guidance for future decisions.
Leaving future decisions purely to the judges discretion, as the ratio does, is undoubtedly minimal 'guidance. ' Were the ratio more specific, concerning specific types of sexual activity, then surely there would be no 'guidance' problems for subsequent cases. As a result of the ambiguity surrounding the 'good reason' at the heart of the ratio, many critics of the case believe not only 'buggery is now certainly illegal'17, but also a wide-range of other activities.
In R V Wilson, a case subsequent to R v Brown, where a man consensually branded his wife's buttocks, 'it is not at all surprising' that the trial judge took the view that he was 'bound by Brown. '18 Such was the far-reaching implication of the ratio. The first criteria laid down by Fuller is that 'deciding every issue on an ad hoc basis' is a 'failure'19, and so therefore rules must exist. Many on the left critical of the R V Brown decision do so from the standpoint that it 'shouldn't be necessary to have the Judges tell us whether we can do with ourselves as we please.