The declaratory theory of the common law

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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.


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.