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Judges in fact make law: The declaratory theory is more or less nonsense

Written By: habibrayeen
12/12/2013 1:20 12/12/2013 1:14

English Legal system has a long history and heritage, and as we know that history gives us experience to judge anything appropriately. In law received wisdom comes to us not only in the authoritative writings of the founding fathers (constitutions) and legislatures but also in past judicial decisions. However the principle of declaratory theory states that when judges are required to make decisions, they do not create or change the law, they merely 'declare' it. Declaratory theory is submitted on the belief that judges' decisions never make law, rather they only constitute evidence of what the law is. As Lord Esher states that, the old view of the judge’s role was that ‘they were merely declaring the existing law’.

Declaratory theory and Judicial Precedent:

To get a clear idea about the judge’s participation in making laws one has to know the role of precedent. Because it plays a very important role in common law. Generally the precedent means an earlier decision. The idea is that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way, following the principle of ‘stare decisis’. The doctrine of binding precedent is the process whereby judges follow previously decided cases where the facts are of sufficient similarity. Previously it was practice that previous decision of the House of Lords is binding for its successors. This was reaffirmed in Tramways Co. v London County Council. However in 1966 LJ Gardiner introduce the practice statement and thus this rule was abolished and judges got chance to make new laws by differing with previous rules. Though On the declaratory theory a court did not and could not absolutely bind its successors. However it is well established that an expression made by a judge as a basis of his judgment becomes the precedent. Thus precedent ensures certainty, consistency, logical progression and development in the law. 

Declaratory theory; parliamentary supremacy; separation of power:

Declaratory theory concept is supporting the controversial view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in the court to the cases presented before them. The main reason for this is that members of parliament are democratically elected to make law. On the other hand judges are appointed by the Lord Chancellor to decide cases. Their decisions did not make law, for of mundane institutions, only a legislature could do that. As we see that Human Rights Act 1998 expressly states Judges only have the power to recognize the compatibility of the law. They do not have power to declare any law invalid on the basis of its incompatibility rather it is the parliament who can change, amend or repeal any law. Moreover parliament also sometimes can overrule the decision of the court which is happened in the case of Burmah Oil v Lord Advocate.

Declaratory theory holds that judges do not create or change the law, but they declare what the law has always been, but not discovered. In the introduction to the commentaries, Blackstone states the judges job is to determine the law “not according to his private judgment, but according to the known laws and customs of the land;” the judge is “not delegated to pronounce a new law, but to maintain and expound the old one”. Prior to this theory Sir Mathew Hale, a famous seventeenth century judge and probably the founder of the declaratory theory opined in the same way.

These statements are containing the idea of strict separation of power and supremacy of the parliament. This theory fundamentally claims that judges are there to use the laws which are made by the representative of the people. Judiciary only acts as a custodian or safeguard of the constitution and the laws. As Lord Devlin states “The Judges are the Keepers of the law and the qualities they need for that task are not those of the creative lawmaker...”. In supporting this argument before 300 years this theory is found in the statement of Sir Matthew Hale where he states, judges duty is to declare and publishing what the law of this kingdom is. To the like effect Blackstone states that “the decisions of courts are the evidence of what is the common law”. Furthermore Lord Esher states “there is no such thing as judge-made law, for the judges do not make 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”. It seems that the declaratory theory is very conservative to develop the laws and this theory is mostly pursuing in opposition to the statement that “Judges Hands are not tied”. As per this theory judges are strictly bound to follow the existing laws and they need to provide the judgment only on the basis of the current law.

Do Judges make law?

However, practically if we observe our history of the judicial decisions then we found bundles of decisions where judges took decision by using their own discretion considering the fact. Therefore it has been the received opinion that judges filled in the gaps left by rules by using their discretion. Because sometimes peculiar or unusual facts comes before the judges on which may there is no existing law to apply where judges required to emerging the new principles and needing to make new law. As CJ Stonore once said “Law is that which is right”. And Lord Denning, one of the most renowned 20th century judges argued that judges could and did make law.

To answer the question whether Judges make the law or mere declare the law; we need to answer the questions, what opportunities judges have at their hand to make law? And how do judges make law?. Judges have basically two broad scopes to expand the law:

1.      In the development of the common Law and;

2.      In the interpretation of Statutes.

First of all, in the course of deciding case before him he may on occasion can develop the common law in the perceived interests of justice, though as a general rule he does this “only interstitially”. This means not only that he must act within the confines of the doctrine of precedent, but the change so made must be seen as a development of existing principle and thus it can take place as a part of the common law as a whole. There are lots of instances where judges developed the new principles to pronounce the judgment. Like the principle of Wednesbury irrationality. In a case in 1948 involving Wednesbury borough council a judge ruled that if something was so absurd that, ‘no reasonable person who had applied his mind could have arrived at it, then it was legally void. This in a sense creation of a new principle and a test and thus developed of the law. Further, In Airedale NHS Trust v Bland the House of Lords had to decide whether it was lawful to stop supplying the drugs and artificial feeding that were keeping the patient alive. The court held that the action was lawful in the circumstances, because it was in the patient's best interests.

Furthermore in the case of Carlill v Carbolic Smoke Ball Company influential judges particularly Lindley LJ and Bowen LJ developed the principle of unilateral offer in inventive ways. Moreover, in the well known case of Entores v Miles Far East Corp. Ltd this concerned about the formation of contract by telex machine. This leading judgment was given by the Denning LJ in which he does refer neither any existing case law nor any statutory provision. Instead of that he says that it is simply reasonable and obvious that a telex must be received to be effective. According to declaratory theory Denning’s judgment cannot be creating law; rather declaring what the law is. Hence question arises if the declaratory theory is adequate then what about the Denning’s judgment?. Moreover, still murder is not defined by statute but is a common law offence. Likewise there are two types of contempt of court. One of these is contempt of court under the Contempt of Court Act. The other sort of contempt of court is framed by common law.

Secondly, statutory Interpretation is the process by which Judges interpret Acts of Parliament. Statutory Interpretation is the process of reading and applying statutory laws, and judges trying to find out the intention of parliament when passing the law. Sometimes the words of a statute have a plain and straightforward meaning. However in most cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judges. An example of where the language was unclear can be seen in the case of Twining v Myers [1982] where court has to decide whether roller skates amounted to a ‘vehicle’. And In this case of Fisher v Bell the defendant displayed flick knives in his shop window. He was charged under The Restriction of Offensive Weapons Act (1959). The act made it an offence to ‘sell or offer for sale’ an offensive weapon. But the court held that display of goods in a shop window is not an offer for sale but an invitation to treat; the display of goods thus invites the customer to make an offer to buy the goods.

Therefore it seems that there are clear indications that in hard cases indeed judges create new law and legal principles for example where existing laws have become outdated or inappropriate. If we conclusively argue that judges do not make law then the very obvious question arises is that how the common law and equitable principles are enhanced and established in our judicial system. As Bentham criticizes declaratory theory by asking that if judges not then, “who has made the common law”?. And Mellish LJ clarifies his position by stating that “the whole of the rules of equity and nine-tenths of the common law have in fact been made by judges”. Even though it may stand against the notion of the separation of power and democracy but practical scenario is that judges are in such position that they have to make law. On which Lord Devlin states that “judicial law making is unacceptable because it is undemocratic.”

Writer: Mohammad Habibur Rahman, student of dpt. of Law, University of London.


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