The declaratory theory of the common law

From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information




The declaratory theory states that when a judge makes a decision in a particular case, he is not determining what the law should be, he is stating what the law is. This theory gives force to the system of binding precedent (see stare decisis), because if judge A in a superior court decides that the law is something-or-other, then of course his decision must be followed by lower courts.

UK LAW

The declaratory theory has no foundation in logic or in fact; nevertheless, it continues to be propounded as dogma by many judges and lawyers. See the problem with precedent for a more detailed discussion of the issues involved.