Introduction
The declaratory theory of law, a foundational concept in the English legal system, posits that judges do not create law but merely declare what the law has always been. This traditional perspective, rooted in the writings of early legal scholars like Sir William Blackstone, suggests that judicial decisions are interpretations of pre-existing legal principles rather than acts of legislative innovation. However, the evolving role of judges in modern times raises critical questions about whether they do, in fact, make law and whether they should assume such a role. This essay critically examines the declaratory theory in the context of the English legal system, exploring the extent to which judges engage in law-making through common law development and statutory interpretation. It also evaluates whether judicial law-making is desirable, balancing the principles of certainty and flexibility against democratic accountability. Through analysis of key cases and academic perspectives, this essay argues that while judges inevitably participate in law-making, the extent and legitimacy of this role remain contentious.
The Declaratory Theory: Origins and Implications
The declaratory theory of law emerged from the view that law is a pre-existing, eternal set of principles waiting to be discovered by judges. Sir William Blackstone, in his influential *Commentaries on the Laws of England*, famously articulated this idea, asserting that judges are “not delegated to pronounce a new law, but to maintain and expound the old one” (Blackstone, 1765). According to this theory, judicial decisions merely uncover latent legal rules rather than establish new ones, preserving the notion of law as objective and immutable. This perspective aligns with the principle of stare decisis, which mandates that judges follow precedents to ensure consistency and predictability in the legal system.
However, the declaratory theory has faced significant criticism for its idealism. In practice, the law is not always clear or pre-determined, particularly in novel cases where no direct precedent exists. Critics argue that judges, in such situations, inevitably exercise discretion, crafting rules that reflect contemporary values or practical necessities rather than ancient principles (Hart, 1961). Thus, while the declaratory theory provides a comforting illusion of legal certainty, it often fails to account for the dynamic nature of judicial decision-making in the English legal system.
Judicial Law-Making in Practice: Common Law and Statutory Interpretation
Despite the declaratory theory, evidence suggests that judges in the English legal system do engage in law-making, particularly through the development of common law. The common law, built on judicial precedents, evolves as judges interpret and adapt legal principles to new circumstances. A landmark example is the case of *Donoghue v Stevenson* [1932] AC 562, where Lord Atkin established the modern law of negligence by articulating the ‘neighbour principle.’ This decision arguably created a new legal duty, demonstrating judicial innovation rather than mere declaration of existing law. Such cases illustrate that judges often fill gaps in the law, effectively acting as lawmakers when parliamentary legislation is silent or ambiguous (Reid, 1972).
Moreover, statutory interpretation further highlights the law-making role of judges. When interpreting ambiguous legislation, judges employ various rules and presumptions, sometimes reaching conclusions that extend beyond the literal wording of statutes. For instance, in Pepper v Hart [1993] AC 593, the House of Lords ruled that parliamentary debates could be consulted to ascertain legislative intent, thereby shaping the interpretive process in a manner akin to law-making. While proponents of the declaratory theory might argue that such decisions merely clarify existing law, it is evident that judges exercise significant discretion, influencing legal outcomes in ways that resemble legislative functions.
Should Judges Make Law? Balancing Flexibility and Accountability
The question of whether judges *should* make law is more normative and touches on deeper issues of legitimacy and separation of powers. On the one hand, judicial law-making offers flexibility, allowing the legal system to adapt to societal changes without the delays inherent in parliamentary processes. Lord Denning, a prominent advocate for judicial creativity, argued that judges must “fill in the gaps” left by legislation to ensure justice in individual cases (Denning, 1979). This view finds support in cases like *R v R* [1992] 1 AC 599, where the House of Lords abolished the marital rape exemption, aligning the law with modern understandings of equality and human rights. Such decisions arguably enhance the law’s relevance, demonstrating the judiciary’s capacity to address evolving social norms.
On the other hand, critics contend that judicial law-making undermines democratic principles. Unlike elected representatives, judges are not accountable to the public, raising concerns about unelected individuals shaping societal rules (Waldron, 2006). Furthermore, excessive judicial activism can erode legal certainty, as seen in debates over inconsistent or unpredictable rulings. The tension between judicial innovation and democratic legitimacy is particularly pronounced in controversial areas, such as human rights law under the Human Rights Act 1998, where judicial interpretations often carry significant political implications. Therefore, while judicial law-making may be necessary in certain contexts, its scope must be carefully circumscribed to preserve the separation of powers.
Limitations and Relevance of the Declaratory Theory Today
Although the declaratory theory remains a theoretical cornerstone of the English legal system, its relevance in modern practice is limited. The theory assumes a static legal framework that does not align with the complexities of contemporary society, where judges frequently encounter novel issues—such as those involving technology or global human rights—that lack clear precedents. Moreover, the increasing influence of European Union law (prior to Brexit) and international conventions has compelled judges to adopt more interpretative and creative roles, further challenging the declaratory model (Dworkin, 1977). Nevertheless, the theory retains symbolic importance, reinforcing the ideal of judicial impartiality and discouraging overt judicial activism.
It is also worth noting that the declaratory theory’s applicability varies across different areas of law. In fields like contract or property law, where precedents are well-established, judicial decisions may closely resemble declarations of existing principles. In contrast, in areas like public law or tort, where societal values play a larger role, judicial creativity is more pronounced. This inconsistency suggests that the declaratory theory, while a useful starting point, cannot fully capture the multifaceted role of judges in the English legal system.
Conclusion
In conclusion, the declaratory theory of law, while historically significant, does not fully reflect the realities of judicial decision-making in the English legal system. Judges undeniably engage in law-making, whether through the incremental development of common law or the interpretation of ambiguous statutes, as evidenced by landmark cases like *Donoghue v Stevenson* and *R v R*. However, the question of whether they *should* make law remains contentious, pitting the need for legal flexibility against the principles of democratic accountability and certainty. Arguably, a balanced approach is necessary, one that permits judicial innovation in exceptional circumstances while ensuring that major policy decisions remain the domain of elected representatives. Ultimately, the evolving role of judges underscores the limitations of the declaratory theory, suggesting that a more nuanced understanding of judicial functions is required to address the complexities of modern law. This debate continues to shape discussions on the judiciary’s role, highlighting the delicate balance between tradition and adaptability in the English legal system.
References
- Blackstone, W. (1765) *Commentaries on the Laws of England*. Oxford: Clarendon Press.
- Denning, A. (1979) *The Discipline of Law*. London: Butterworths.
- Dworkin, R. (1977) *Taking Rights Seriously*. London: Duckworth.
- Hart, H.L.A. (1961) *The Concept of Law*. Oxford: Oxford University Press.
- Reid, Lord (1972) The Judge as Law Maker. *Journal of the Society of Public Teachers of Law*, 12, pp. 22-29.
- Waldron, J. (2006) The Core of the Case Against Judicial Review. *Yale Law Journal*, 115(6), pp. 1346-1406.
