Essay question: 'The declaratory theory of judging is a myth, but a useful one.' Discuss.
---
Model answer
The proposition that the declaratory theory is a 'myth' commands wide acceptance among modern jurists. The stronger declaratory thesis—that judges never make law but merely discover and apply pre-existing rules—cannot withstand scrutiny of judicial practice. Yet whether the myth was or remains 'useful' is contested. This essay will argue that while the declaratory theory inaccurately described judicial practice even at its height, it served valuable rhetorical and constitutional functions. However, its residual utility in contemporary conditions is limited, and candid acknowledgment of judicial law-making, coupled with articulation of principled constraints, better serves legitimacy and accountability.
The declaratory theory as myth
Blackstone's formulation—that judges are 'living oracles' who declare but never make law—rested on the fiction that common law embodied immemorial custom. Judicial decisions did not create law; they evidenced what the law always was. This account collapsed under both historical and conceptual scrutiny. Historically, many 'ancient' common law rules were demonstrably recent innovations (R v R [1992] AC 599 acknowledged that the marital rape exemption, though old, was a judicial creation, not immemorial custom). Conceptually, judges constantly choose among plausible interpretations, resolve ambiguities, and extend principles to novel facts—exercises impossible to square with mere 'discovery'.
Lord Reid's 1972 lecture dismissed the declaratory theory as a 'fairy tale' believed by no informed observer. He acknowledged that judges inevitably make law in gaps or penumbra of rules, though emphasising such law-making was interstitial and constrained by principle. Modern jurisprudence, from Hart's recognition of judicial discretion in 'open texture' cases to Dworkin's interpretive account, rejects strong declaratory claims.
Empirical examination of landmark cases confirms the myth. When the House of Lords in Conway v Rimmer [1968] AC 910 overruled Duncan v Cammell Laird on Crown privilege, it changed the law. When Donoghue v Stevenson [1932] AC 562 recognised a general duty of care in negligence, it created new liability. To pretend these decisions merely 'found' pre-existing law strains credulity.
The utility of the myth
Yet the declaratory theory, though false, served important functions. First, it reconciled judicial activity with parliamentary sovereignty. If judges declared rather than made law, they did not compete with Parliament's legislative monopoly. This fiction preserved constitutional harmony in an era anxious about judicial power. Second, it constrained judges' self-conception. Believing themselves bound to declare existing law, judges arguably exercised restraint, avoiding overt policy-making. The myth functioned as an internal check.
Third, the declaratory theory supported legal certainty and the rule of law. If judicial decisions declared pre-existing rules, parties governed their conduct by law knowable in advance. By contrast, acknowledging judicial law-making highlights retrospectivity: the losing party in a novel case is bound by a rule articulated after the facts. Lord Radcliffe defended declaratory rhetoric as protecting 'the authority of the past', ensuring legal stability.
Fourth, the fiction facilitated legitimacy. Unelected judges making law is democratically problematic. Claiming only to 'find' law insulated courts from accusations of usurping legislative authority. This rhetorical strategy underpinned judicial independence and public trust.
Contemporary (lack of) utility
These benefits diminish in modern conditions. Post-Practice Statement [1966] 1 WLR 1234, apex courts openly depart from precedent, acknowledging law-making. Post-HRA, courts under s 3 read statutes creatively to achieve rights-compatibility (Ghaidan v Godin-Mendoza [2004] UKHL 30), transparently altering legislative meaning. Pretending these exercises are mere 'declaration' insults public intelligence and obscures accountability.
Moreover, candid acknowledgment of judicial law-making, coupled with articulation of legitimate limits, better serves constitutional governance. Lord Browne-Wilkinson in Airedale NHS Trust v Bland [1993] AC 789 openly stated the House was developing law but deferred to Parliament on comprehensive reform. This honesty clarifies institutional roles without undermining judicial authority. Academic work by Gardner, Allan, and others has articulated principled constraints—incrementalism, respect for legislative policy, avoidance of politically controversial questions—that guide legitimate judicial creativity. These constraints are more transparent and accountable than declaratory fiction.
The retrospectivity concern is real but overstated. Parties in novel cases know the law is uncertain; reasonable foreseeability, not absolute clarity, suffices for rule of law. R v R survived Art 7 ECHR scrutiny because the marital rape exemption's demise was reasonably foreseeable. Candid acknowledgment of law-making can prompt prospective-only application or legislative intervention where retrospectivity would cause injustice.
Finally, the myth may affirmatively harm legitimacy. When courts implausibly claim only to apply pre-existing law while visibly making novel rulings, public and political actors may perceive dishonesty or arrogance. Transparency about law-making, within acknowledged constitutional limits, fosters trust.
Conclusion
The declaratory theory is undoubtedly a myth: judges do make law, incrementally and within constraints. Historically, the myth served rhetorical and constitutional purposes—preserving parliamentary sovereignty's appearance, promoting restraint, and bolstering legitimacy. In contemporary constitutional practice, however, its utility has largely expired. Transparent acknowledgment of judicial creativity, accompanied by principled limits grounded in separation of powers, incrementalism, and deference to democratic institutions, offers a more honest and accountable framework. The myth may have been useful once, but clinging to it now risks both intellectual dishonesty and democratic legitimacy. Modern jurisprudence rightly seeks a candid equilibrium: judges may and must develop law, but must do so openly, incrementally, and with respect for the constitutional boundaries that distinguish adjudication from legislation.