Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. (iii) Distinguishing precedent ... Declaratory theory.
Because it plays a very important role in common law. No Real Argument About It: Judges Make Law – Declaratory Theory Is More Or Less Nonsense.
1. The theory is widely re-garded as obviously false. In the case of declaratory precedent, the rule is applied because it is already law. ... DECLARATORY THEORY declaratory theory. Declaratory theory is propounded on the belief that judges' decisions never make law, rather they only constitute evidence of what the law is. Abstract. Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. Types of Judicial Precedent. However 300 years of precedent in the form of such an exemption existing would contradict such a position. Declaratory Theories Declaratory theory emerged as a reaction to the unprincipled implications and conceptual difficulties inherent in a strictly constitutive approach to recognition. Blackstone ð2001Þ is regarded as the chief exponent of the declaratory theory but may not have fully endorsed it ðPosner 1976; Alschuler 1996Þ. Whereas, an original precedent is one where a new law is created and applied in a legal matter. Whereas, an original precedent is one where a new law is created and applied in a legal matter. It is the law creating precedent. Constitutive Theory of Precedent; Salmond and Bentham are the main supporters of this theory. (ii) Original precedent This principle or proposition of law as formulated by the court. Binding Precedent - Free download as PDF File (.pdf), Text File (.txt) or read online for free. 9. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. Blackstone ð2001Þ is regarded as the chief exponent of the declaratory theory but may not have fully endorsed it ðPosner 1976; Alschuler 1996Þ. Declaratory and Original Precedents. 3.2.1 The declaratory theory of law. This article examines the declaratory theory of law and defends it from the most prominent modern attack on it.
Supreme Court long ago junked the declaratory theory, its shadow lives on in the doctrine that the Court will not overrule a precedent 13 223 F.3d 898 (8th Cir. This view is accepted by Blackstone. So when a precedent is overruled, the earlier court found the wrong law and the overruling court found the right one. The declaratory theory relates to the fact that judges do not make laws they simply discover and declare what the law has always been. In ancient legal systems of Babylonia and China, the judicial decisions were considered to be a great authority, and later on, they were embodied in code law. 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. When confronted with a novel point, judges always tend to speak as though the answer is provided by the common law.” Rupert Cross & J.W. It has been mocked as “dog law” ðBentham 1843b, 235 Þ, Types of Judicial Precedent. In the case of declaratory precedent, the rule is applied because it is already law. Declaratory theory argues instead that statehood is independent of recognition; that the act of recognition by other states in the international system is purely declaratory. However, this view is no longer accepted. Generally the precedent means an earlier decision. The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law.
Declaratory theory and Judicial Precedent: To get a clear idea about the judge’s participation in making laws one has to know the role of precedent. judges deciding similar issues later. As John William Salmon explained, a declaratory precedent is one where there is only application of an already existing rule in a legal matter.