Declaratory Theory

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"Declaratory theory is propounded on the belief that judges' decisions never make law, rather they only constitute evidence of what the law is. However, this view is no longer accepted. There are three reasons for the persistence of the declaratory theory. In the first place, it appealed in the separation of powers. Secondly, it concealed the fact that judge-made law is retrospective in its effect and finally, when the judges confronted with a new, unusual, or different point, they tend to present as if the answer is provided by the common law. One of the most widely-accepted principles of the English legal system is what is known as the 'declaratory theory' of judicial decision-making. This principle states that when judges are required to make decisions, they do not create or change the law, they merely 'declare' it. That is, a judge says what he or she finds the law to be; no 'new' law is ever created by judges. New law comes from Parliament. For example, the Criminal Justice Bill that is currently going through Parliament will make fairly radical changes to the criminal law. It will take away the blanket immunity that currently exists from being prosecuted twice for the same offence. No-one is suggesting that this Bill declares the law: the ancient 'double-jeopardy' principle has existed for centuries. When the Bill is enacted, the law will simply change. This article attempts to show, first, that the declaratory theory itself is based on indefensible assumptions of fact. Second, it shows that the theory sometimes leads to bizarre conclusions, which can only be avoided by the most strained reasoning. Finally, it examines why the theory commands so much reverence, when most academics and many judges believe it to be fatally flawed. Why the declaratory theory is factually indefensible The classical exposition of the declaratory theory is that of Lord Esher in Willis v Baddeley (1892): There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. That judges appear to create and change law is undeniable; cases like Donaghue v Stevenson, Hedley Byrne v Heller, and Wednesbury represent significant developments in the law. In Lord Esher's view, the judges in these cases would simply be applying existing principles to new fact situations. But where do these existing principles come from? Some of them, no doubt, come from previous case law. When a judge is called on to decide a case, most often a decision can be made by looking at previous cases whose facts are similar to those at issue, and reasoning from them. Very often there will be previous cases that are binding on a particular court, and these will dictate the outcome. But unless we are to accept an infinite regress of case law, back to the very dawn of time, there must be some point in the past at which an issue was first decided. The romantic view is that the earliest judicial decisions were made by the 'wandering justices' of the 13th century, who travelled the land at the King's behest, applying and unifying the existing law of the land. The pragmatic view is that the English common law results from an attempt by the Norman French nobility to apply its standards of law in a conquered country, while giving an illusion of continuity. Whether the legal developments of the medieval period followed from a process of approving established legal custom, or from the imposition of a foreign jurisprudence, neither represent an answer to the question where the foundational principles come from. There are really only two possibilities: either they were, at some point, created by the judges, or they were based on existing 'universal truths' that were self-evident to the judges. The declaratory theory repudiates the notion that the judges 'made things up', so the only alternative is that they were...
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