The Declaratory Theory of Law
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Published: Thu, 21 Dec 2017
The declaratory theory of law is quite simply that judges do not make or create the law, the merely declare what the law is and what it has always been. The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning. The legislative body of the United Kingdom, Parliament, is elected and therefore, in theory, a reflection of the majority view on key issues such as euthanasia, gay marriage and terrorism measures. The reality is the English legal system has two main sources of law when it comes to the determination and deliverance of justice. There is the common law doctrine of precedent which has evolved with the judiciary and as a result, some would argue is highly uncertain. The second source of law takes the form of statute and as a result of the legislative wording that exists, is significantly more certain. Regardless of an individual’s view on the matter, it has to be accepted, as stated by Lord Irvine of Laring, that, within a certain limit, the role of judges will require a degree of legitimate law-making. The limits of this law making ability is defined by the English constitution and entangled key principles, such as parliamentary supremacy.
“The judges do every day make law, though it is almost heresy to say so.”
The reality is that the English Legal System has developed as such that the judiciary do demonstrate a degree of judicial creativity which results in the creation of law. There are two key cases, well known to all English lawyers which demonstrate the fact that the judiciary do make the law. The first is the famous tort case of Donoghue v Stevenson . In this instance, the claimant was asking the judiciary to develop a principle that was otherwise not in existence. The problem was that the claimant was asking the judges to not only change the law so that it supported her case but to also retrospectively apply that law to the event in question (i.e. the snail in the ginger beer incident). The result was that in 1932 the judges stated that the defendant had a duty of care towards the claimant that did not actually exist in 1928 when the incident occurred. There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in this manner. The first is the most obvious but equally the most constitutionally concerning theory that the judges simply created new law and then retrospectively applied it to the event in question. There are some obvious issues here in terms of the principles of law and also the English constitution . The second of school of thought is the least applicable in terms of academic sway but is the most compatible with the principle of the English judicial system. This is the application of the declaratory theory of law, whereby the judges in this case were simply stating the law as it always has been. The next important case for consideration in this aspect is the criminal law case of R v R . This case involved the conviction of a defendant for raping his wife. Prior to the determination of this case there was no such thing as rape within a marital relationship; it was implied through the virtue of being married that sex would always be consensual. However, this conviction drastically changed the law by removing this marital exemption. The declaratory theory of law would have you believe that this is what the law had always been and that there was no new law being made. However 300 years of precedent in the form of such an exemption existing would contradict such a position. As a result, it has to be accepted that the declaratory theory of law is not a valid theory anymore and that judges do create law for legitimate purposes.
Separation of Powers
As the law has developed, so have the academic theorists who argue that the judiciary can make law within certain narrow confines. This is not necessarily a negative concept, as many would have you believe, as the ability of the judiciary to make law without accountability is both an advantage and a disadvantage. The development of law in this manner means that the fact that judges do not have to worry about voting statistics is an advantage in ensuring that the correct and just path is followed . Rather than issues being dealt with in accordance with the mob mentality of the general public, they are determined without such pressures and in accordance with a pure moral conscious. The law can be changed quickly in this manner which makes the judiciary incredibly versatile. There is however a limitation on this power, which is embodied in the separation of powers which contains levels of checks and balances. It is important to appreciate two aspects of this problem. The first is the United Kingdom is one of the few countries in the world that does not have a written or codified constitution . This means that there are an extensive number of areas which have had to develop through doctrine and principle over a long period of time as there has been no specific document to resolve the question at hand. The second is that the concept of the separation of powers is a political notion and not a legal principle . The political concept of separation of powers is possibly as old as democracy itself, as its origins can be traced back to the father of logic, Aristotle. However, a number of legal principles have influenced the manner in which the political world has functioned. The most influential is that of Dicey’s theory of parliamentary supremacy . This principle has influenced and dictated the extent of judicial creativity and activism and has acted as a check on the judiciary . This effectively makes the judicial branch the weakest branch of the three as the courts recognise that they can be overridden by Parliament. This was demonstrated in the case of Burmah Oil v Lord Advocate . In this case, the House of Lords held that the proprietor of the oil fields was entitled to compensation from the government for the lawful damage that had been caused. However, Parliament then enacted the War Damage Act 1965 which retrospectively exempted the Crown from paying such compensation. This effectively frustrated the decision of the House of Lords and resulted in the Court being overridden.
It has to be accepted that the judiciary to alter the law and allow for it to develop through their judicial reasoning. However this is not something to be feared, as the judiciary is still the weakest branch out of the three constitutional branches and it has not yet exceeded its judicial remit. The use of parliamentary principles such as Parliamentary Sovereignty means that the powers of the judiciary are limited without the concept of justice being infringed upon.
Burmah Oil v Lord Advocate  AC 75
R v R (rape – marital exemption)  HL
Alan, TRS, Law, Liberty and Justice: the legal foundations of British Constitutionalism Oxford University Press, Oxford, 2003, chapter 3
Lord Denning, The Reform of Equity in C.J. Hamsori (ed). Law Reform and Law-Making (1953)
Pollard, D. Constitutional and Adminstrative Law: Text with Materials Oxford University Press, Oxford, 2007, 15
Baroness Hale ‘ A Supreme Court for the United Kingdom’ (2003) 119 LQR 49
Lord Bingham ‘The Old Order Changeth’ (2006) 122 LQR 211
Lord Steyn ‘Democracy, the Rule of Law and the Role of Judges’  EHRLR 243, 246
Woodhouse, D. ‘The Constitutional and political implications of a United Kingdom Supreme Court’ (2004) 24 LS 134
War Damages Act 1965
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