Judges in fact makelaw:

Thedeclaratory theory is moreor less nonsense

Mohammad Habibur Rahman*
Abstract
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. 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.
Keywords: Declaratory theory, binding precedent, parliamentary supremacy, separation of power.
Introduction:
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 thefounding fathers (constitutions) and legislatures but
also in past judicial decisions.
1
However theprinciple 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 judges role was that they
were merely declaring the existing law.
2
Declaratory theory and Judicial Precedent:
To get a clear idea about the judges 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
3
. 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. ThoughOn the declaratory theory a court

* Mohammad Habibur Rahman, current student of University of London, LLB (2
nd
year). Email: mhr25@student.london.ac.uk or habibrayeen@gmail.com,
contact: 01679254949
1
Legal Theory and Judge-Made Law in England 1850-1920; Michael Lobban.
2
Willis v Baddeley [1892], 2 QB 324.
3
(1898) AC 375.
November 2013
did not and could not absolutely bind its successors.
4
However it is well established that an expression made by a judge as a basis of his
judgment becomes the precedent.
5
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 thecourt 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.
6
As we see
that Human Rights Act 1998 expressly states J udges 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 itsincompatibilityrather 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
7
.
Declaratory theory holds that judges do not create or change the law, but they declare what the law has always been, but not
discovered.
8
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.
9
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.
10
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. J udiciary only acts as a custodian or
safeguard of the constitution and the laws. As Lord DevlinstatesThe J udges are the Keepers of the law and the qualities they need for
that task are not those of the creative lawmaker....
11
Insupporting 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 kingdomis.
12
To the like effect
Blackstone states that the decisions of courts are the evidence of what is the common law.
13
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.
14
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 J udges 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.

4
Blackstone, supra note 38, at 70.
5
Alfonso Ruiz Migue; Equality before the Law and Precedent, Vol. 10 No. 4 December 1997 (372-91).
6
HALE, supra note 72, at 45.
7
[1965] AC 75.
8
Lord Esher in Willis v Baddeley [1892] 2 QB 324.
9
WilliamBlackstone, Commentaries vol. 1-2. Law vol. 1 (3
rd
ed., 1783).
10
Mathew Hale, History of the Common Law, ed. Henry Butterworth, (London, 1820), p. at 67.
11
Patrick Devlin, The Enforcement of Morals, (Oxford: Oxford University Press,
1965).
12
Mathew Hale, History of the Common Law, 6th ed. Henry Butterworth, (London, 1820), p. at 90.
13
Blackstone (commentaries, 6
th
ed., I, pp. 88-9).
14
Willis v Baddeley [1892] 2 QB 324.
Do Judges make law?
However, practically if we observe our history of the judicial decisions then we found bundlesof decisions where judges took decision
by using their own discretionconsidering the fact. Therefore it has been the received opinion that judges filled in the gaps left by rules
by using their discretion.
15
Becausesometimespeculiar or unusual facts comes before the judges onwhich may there is no existing law
to apply wherejudges required to emerging the new principles and needing to make new law. As CJ Stonore once said Law is that
which is right. AndLord Denning, one of the most renowned 20th century judges argued that judges could and did make law.
To answer the question whether J udges 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?. J udges have basically two broad scopes toexpand 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.
16
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. Likethe
principle of Wednesbury irrationality.
17
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
18
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.
Furthermorein the case of Carlill v Carbolic Smoke Ball Company
19
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
20
this
concerned about the formation of contract by telex machine. This leadingjudgment 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 todeclaratory theory Dennings judgment cannot be creating law; rather declaring what the
law is. Hence question arises if the declaratory theory is adequate then what about the Dennings 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.

15
Southern Pacific Co v. Jensen, 244 US 205, 222 (1917).
16
Entores Ltd v Miles Far East Corp [1955] 2 Q.B. 327.
17
Associated Provincial Picture Houses Ltd. V Wednesbury Corporation [1948] 1 KB 223.
18
[1993] 1 All ER 821.
19
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (CA).
20
[1955] 2 Q.B. 327.
Secondly, statutory Interpretation is the process by which J udges 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 havea plain and straightforward meaning. However in most cases, there is some ambiguity or vaguenessin 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
21
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.
Conclusion:
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 thenthe very obvious
question arises is that how the common law and equitable principles are enhanced and established in our judicial system. As Bentham
criticizes declaratorytheory by asking that if judges not then, who has made the common law?
22
. 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.
23
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.
24

21
[1961] 1 QB 394.
22
J eremy Bentham, Truth verses Ashhurst; or, law as it is, contrasted with what it ought to be in J ohn Bowring (ed.), The Works of J eremy Bentham,
(Edinburg/London:1843), vol. V, at 235.
23
Allen v Jackson (1872) Ch.D.399 at 405.
24
Patrick Devlin, Judges and Lawmakers, (1976) 39 Modern Law Review 10.