Declaratory Theory

Judicial
legislation is
retrospective

The English philosopher and jurist Jeremy

Bentham (1748-1832) in Volume V of
his Works. "Do you know how they make it? said,
"It is the judges that make the common law, just
as a man makes laws for his dog. When your
dog does anything you want to break him of, you
wait till he does it and then beat him. This is the
way you make laws for your dog, and this is the
way judges make laws for you and me."

Bentham
The debate

"Declaratory Theory" holds that judges do

not create or change the law, but they
`declare' what the law has always been, but not
"discovered".
A practical example - Donoghue v
Stevenson [1932] HL
The facts
On 26 August 1928 May Donoghue drank a
bottle of ginger beer that contained a
decomposing snail which made her ill.

In one law report

Ms Donoghue is
referred to as
Mary and another
as May.
She is also
known as
M'Alister,
probably she
married before
the case was
finished.

Nearly five years later (1932) the case was

heard by the House of Lords, the case was
called Donoghue v Stevenson [1932]. May
Donoghue asked the judges to decide that the
ginger beer manufacturer, David Stevenson,
should pay her damages (compensation)
because his product had made her ill.
The problem
On 26 August 1928, the day May Donoghue
drank the beer, the law - as it was understood
then - was on David Stevenson's side.
In 1932, the judges were asked to change the
law four years after the event.
If they changed the law in such a way that it was

on May Donoghue's side the change would have

to be effective on the day she drank the beer;
that is in 1928.
The solutions
The judges changed the law to say that back
in 1928 David Stevenson owed her a duty to
make sure there were no foreign objects in the
bottle. By applying this new law she won. They
changed the law on 26 May 1932 and it had
effect from 26 August 1928 onwards.
Lord Radcliffe in
1968, In a book
entitled Not in
Feather Beds

"There was never a more sterile controversy

than upon the question whether a judge makes
law. Of course he does. How can he help it?"

Lord Reid in a
speech entitled
"The judge as
lawmaker"

"We do not believe in fairy tales any more, so we

must accept the fact that for better or worse
judges do make law."

Lord Denning.
The Reform of
Equity

"The judges do every day make law, though

it is almost heresy to say so."

Professor Jaffe in
English and
American Judges
As Lawmakers

There is no reason why, given the policy, a

judge should not be a good activist lawmaker...
there seems to be no limit to what they could do
if only they would unshackle themselves from
their precedents.

Lord Devlin
Samples of
Lawmaking
(1962)

"I doubt if judges will now of their own motion

contribute much more to the development of the
law..."

Lord Reid The

Law and The
Reasonable Man
1968

I suppose that almost every doctrine of the

common law was invented by some judge at
some period in history...when he invented it he
thought it was plain common sense...But, with
the passage of time more technically minded
judges have forgotten its origin and developed it
in a way that can easily cause injustice...judges
can get the thing back on the rails...if it has
gone too far we must pin our hopes on
Parliament.

Professor W.
Geldart

With precedent you

...get an impenetrable maze of distinctions and
qualifications which destroy certainty ...we must
find a middle way which prevents precedent
from being our master.

Professor W.
Geldart

Judicial precedent on the one hand, provides

advantages of certainty, possibility of growth,
great wealth of detailed rules, and a practical
character of these rules. And on the other hand
of being restrictive in being rigid
the binding force of precedent is a fetter on the
discretion of the judge, illogical distinctions, bulk
and complexity.

A superior court
can disapprove of
a decision

Judges can get things 'back on tracks' without

completely changing the law.
Not overruling it but expressing doubt as to the
validity of the previous rule applied by the
inferior court.

In the Times Law

Awards
ceremony 1997
Lord Mackay LC

The duty of the judge is to apply the law as he

finds it, not to seek to rectify perceived
inadequacies by the use of creative
interpretation.
He also said where there is a gap in the law our
judges are required to take account of precedent
but where this is unclear he must decide the best
way to proceed and the result may be a decision
which is in some way innovative ... but the
fundamental principles were always part of the
law.
Thus he believes judges find law by applying
already existing principles.

Lord Diplock
in Dupont v
Steel 1980

Parliament makes the laws, the judiciary

interpret them.

John Austin
(1790 - 1859)
legal philosopher

Austin said that he could not understand how

any person can suppose ... that society could
have gone on if judges had not legislated.

Lord Denning
in Re: Sigsworth

Lord Denning stated that when they were

interpreting statutes it was necessary for judge
to correct omissions left by Parliament:
"We fill in the gaps."

Lord Scarman
in McLoughlin v
OBrian

Lord Scarman took a middle course, he said;

"The objective of judges is the formulation of
principles; policy is the prerogative of
Parliament."

Denning -v- Simonds

Simonds
dominated the
House of Lords
until 1962

Lord Simonds represents the traditional and

dominant posture of the English Judiciary
judges should be passive, Denning advocated
activist lawmaking.

Simonds
overruled
Denning that a
third party
cannot sue on a
contract

An example of the two approaches to law making

was the issue of 'privity of contract', Denning
took the opposite view to Simonds.

Kleinwort Benson
v Lincoln
CC [1998] HL

Lord Wilberforce said that to declare from that

date a new and more extensive principle of
liability would affect many people's assumed
legal rights. Any such new direction must be set

This rule has now been changed by statute to

accommodate EC legal exchange.

by Parliament for the future, not by the courts

retrospectively.

Parliamentary
law is
prospective

A new Act of Parliament changes the law for the

future and do not intended it to act
retrospectively; there are some exceptions to
this rule, see here.

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.

Declaratory
Theory, is
obvious in
practice

As a trial always occurs after the event

complained about the judge is bound to state the
law at the time of the event; that is as it was
before the trial date. It follows that he is simply
stating the law as it was, even though he
appears to be changing it. He is changing it back
to what it always was.

So how far back

do the judges
claim the law
they have found
existed?

Briefly, the theory would suggest that is a fixed

date, 3rd September 1189, legal memory does
not go back before then. Sometimes called
"Time Immemorial
This date was set by the Statute of Westminster
1275, it is the date of the coronation of Richard
I.

Declaratory Theory and jurisprudence

Universal Truths,
or is there an
occasion on
which the law
started

These are two options put forward by students of

jurisprudence.
The first is that they are self-evident truths
based on Natural Law.
The other based on Positivism that the law was
indeed created at an unspecified time in history.
If either of these is accepted then clearly judges
do not make law, and Declaratory Theory is

correct.

Realist Theory

Lord Reid:
Declaratory theory is a fairy tale that no
one believes.
Judges make law within narrow confines.

Modern problems
confound the
Declaratory
Theory

Developing or creating new

law is inevitable to do justice, or to bring
law in line with social changes.
Successfully explains overruling

In R v Preddy, the defendant was acquitted of

defrauding a bank by means of a money
transfer.
How could the law that was applied have been in
existence for all time, and discovered when the
technology (bank money electronic transfers)
has only existed for 50 years or so?

The Kleinwort
Benson anomaly

This case involved a complicated 'swap'

investment process, to understand what actually
happened does not assist us in looking at
Declaratory Theory, but we need to know two
legal principles that existed at the time the
House of Lords decided Kleinwort:
1. Money paid by mistake of fact is
recoverable, as a matter of law
2. Money paid my mistake of law is not
recoverable, as a matter of law (ignorance
of the law excuses no man)

Their Lordships
agreed that in
the Kleinwort
case money
should be
recoverable as a
matter or law,
effectively
changing the
old understood
legal principle

The problem was should this apply to future

cases or was the House declaring that that was
what the law always was?
If they were declaring that the law always was
that money paid by mistake of law was
recoverable (and not what everyone understood
to be the case) then all previous incidents of
money paid because of a mistake of law would
have been decided wrongly or worse still
claimants who had been advised they had no
cause of action could now litigate, and recover
assets.

The two choices facing the Lords where these:

Lords decide that the legal principle is wrong and always has been.
They decide this because the rule in unjust.
money under a mistake of law

Kleinwort pays Local Authority

Local A

Effect is that cases before the judgment can now be won by businesses who thought they had no cause of

Kleinwort pays Local Authority

money under a mistake of law

Lords decide that the legal principle is wrong but the new principle
only applies in the future

Local A

Result then is a principle that both parties and the Lords agree is an unjust principle is allowed to remain the law for
The reasoning of the 5 Law Lords was divided but the result
was to give effect to Declaratory Theory, reluctantly, it seems.
Criminal Law
Declaratory
Theory and
Criminal Law

In R v R (rape - marital exemption) [1991] HL the

defendant was convicted of raping his wife, anyone
who had obtained legal advice for 300 years prior
to this occasion would have been told that the law
did not recognise such an offence.
Similarly, in Shaw the law knew no offence of
Conspiracy to Corrupt Public morals.

R v R (rape marital
exemption)
[1991] HL

This case did not create a new offence merely

declared that it had always been an offence.
Although no one could have known it was an
offence. So the dictum ignorance of the law is no
defence should read ignorance of what the law is
going to be is no defence.

SW v United
Kingdom (1995

Concerned a man who was prosecuted in 1994 for

a rape he had allegedly committed in 1990. If was

far from obvious that marital rape was illegal in

1990.
The ECHR upheld the criminal conviction, on the
basis that when the rapes occurred, the defendants
could have reasonably foreseen that the
criminalisation of martial rape was likely.

Strasbourg
jurisprudence
recognises the
courts power
to do this

even in the criminal law and the definition of

criminal offences, the law can be developed by
domestic courts through judicial interpretation
from case to case.

Article 7(1) of
the European
Convention on
Human Rights

No Punishment without law

1. No one shall be held guilty of any criminal
offence on account of any act or omission which did
not constitute a criminal offence under national or
international law at the time when it was
committed.

R v Governor of HMP Brockhill Ex parte

Evans ( 2000)

Professor Atiyahs commentary on Declaratory Theory in

Judges and Policy (1980)
Judge can hide
behind higher
principles

Firstly, judges can use it to evade responsibility by

shifting criticism of his judgment onto `the law' as
a higher principle, and that they are bound by the
law.

Judges only
make law
within narrow
constraints to
do justice

Second, because parliament is the proper place for

legislation to be made, judges should make law
only within narrow constraints. They should do so
to do justice.
This approach gives frustration to
interpreting ratio of particular cases, which result in
the misapplication of law in later cases.

Judges are not

making law
which is
parliament's
role

Third, judicial lawmaking is tolerated only because

it is not exercised openly, and if judges made law
without retrospective effect this would effectively
mean they are engaging in naked legislation.
Judicial creativity using Declaratory Theory means

that law making is done on the sly.

Declaratory
Theory
preserves the
fiction of
precedent

Fourth, many judges appear to believe that the

only alternative to Declaratory Theory is to
abandon the doctrine of precedent and the
separation of powers, despite this not occurring in
the USA.

Give the
appearance of
impartiality

Fifth, judges can hide behind Declaratory theory to

prevent the perception that they prefer one view of
the law to another, and thereby retain public
respect for the judicial impartiality.