DECLARATORY THEORY

declaratory  theory.The  belief  that  judges’  decisions  never  make  law  but  instead  merely

constitute evidence of what the law is. • This antiquated view — held by such figures as Coke and

Blackstone — is no longer accepted.

“There are … at least three good reasons why the declaratory theory should have persisted for

some time after the  modern English doctrine [of precedent] had begun to take shape. In the first

place,  it  appealed  to  believers  in  the  separation  of  powers,  to  whom  anything  in  the  nature  of

judicial legislation would have been anathema. Secondly, it concealed a fact which Bentham was

anxious  to  expose,  namely,  that  judge-made  law  is  retrospective  in  its  effect.  If  in  December  a

court adjudges that someone is liable, in consequence of his conduct during the previous January,

it would certainly appear to be legislating retrospectively, unless the liability is based on an earlier

Act of Parliament, or unless the court is simply following a previous decision. A way of disguising

the  retrospective  character  of  such  a  judgment  would  be  to  maintain  the  doctrine  that  the  court

really  was  doing  no  more than  state  a  rule  which  anyone  could  have  deduced  from  well-known

principles or common usage, for the conduct in question would then have been prohibited by the

law as it stood in January. The third reason for the  persistence  of the  declaratory theory  may be

thought to justify its retention in a revised form today. When confronted with a novel point, judges

always tend to speak as though the answer is provided by the common law.” Rupert Cross & J.W.

Harris, Precedent in English Law 30 (4th ed. 1991). [Blacks Law 8th]