The Declaratory Theory Of Law

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Introduction to the declaratory theory

In Kleinwort Benson Ltd v Lincoln City Council Kleinwort [1999] 2 AC 349, Lord Goff of Chieveley wrote “the declaratory theory of judicial decisions is to be found in a statement by Sir Matthew Hale 300 years ago, saying that “the decisions of the courts do not constitute the law properly so called, but are evidence of the law and as such have a great weight and authority in expounding, declaring and publishing what the law of this Kingdom is.”

The declaratory theory suggests that the law is pre-existing and judges find it and declare his findings . The past decisions of the court, as evidence to what the law is, facilitates judges to find what the law is.

The declaratory theory has been widely contended. Lord Reid contended that better or worse we have to accept that judges do make law and it is a fairy tale that judges only declare law .

These conflicting views lead to the question that do judges make law or they merely declare law as the declaratory theory suggests. This essay argues that judges make law instead of declaring law.

In this essay, the doctrine of binding precedent will be addressed and would further explore the room of judicial law-making seen under the doctrine.

Doctrine of binding precedent

Ratio decidendi and orbiter dictum

Sir John Salmond wrote in Jurisprudence “The principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the
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