No Real Argument About It: Judges Make Law – Declaratory Theory Is More Or Less Nonsense
The declaratory theory is a principle concerning the source of law which primarily supports the doctrine of separation of powers according to which the three organs of the state — the judiciary, legislature and executive — should be separate and possess their own respective powers. Judges do make law in certain situations even though we do not openly admit it as lawmaking is supposed to be in the hands of Parliament not the judiciary.
Stare decisis can be defined as a legal principal which dictates that courts cannot disregard the decisions of higher courts in the hierarchy of the English judiciary. Ratio decidendi is a point in a case which determines the judgment. Obiter dictum is a remark or observation made by a judge which, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision.
In developed countries like the United States and United Kingdom the law is almost in its purest form and denies the judiciary to take part in any law making role. The doctrine of parliamentary sovereignty says that parliament is the only law making authority and can make or unmake any law in the United Kingdom. The role of legislature should be to make laws while the executive’s role should be confined to the implementation of laws and the active role of judiciary ought to be adjudication.
This means that judges only have the power to interpret the law for resolving a matter and cannot make any law during this adjudicating process. Lord Diplock, in Dupont v Steel (1980) also supports the declaratory theory in the following words: “Parliament makes the laws, the judiciary interprets them.” However judges have the power to change rules or make new laws through precedent or statutory interpretation, as mentioned in Re Sigsworth (1935) by Lord Denning: “We fill in the gaps.” This would mean that there are certain loopholes in the law which judges fill through precedent (i.e. decisions of earlier cases which judges must follow in the later cases), or statutory interpretation (i.e. by interpreting the statute).
Lord Scarman in McLoughlin v O’Brian (1983) said, “The objective of judges is the formulation of principles; policy is the prerogative of parliament.” This saying is clearly telling us that the main role of judges is to declare or formulate law while the law making role belongs to parliament whereby the law is considered to be complete and judges do not have to fill in the gaps. So according to Lord Scarman, the solution to every problem is present in law and there are no loopholes in law.
An even more radical claim to judicial law making was made by Lord Justice Laws who argued that the judiciary was subject to a “higher law” (parliament), which stood above statutes and with which other statutes must comply. It was, he claimed, the role of the judges to apply this higher law in courts. He seems to be focusing on the same notion that parliament is a higher authority of law-making and judges should apply this higher law in courts. This statement clearly expresses that no one is above the parliament and judges should also follow it.
The following comments by Lord Steyn in The Weakest and Least Dangerous Department of Government (1977) indicate that some judges wish to re-establish the constitutional boundaries between the different branches of government: “The relationship between the judiciary and the legislature is simple and straightforward. Parliament asserts sovereign legislative power. The courts acknowledge the sovereignty of parliament and in countless decisions the courts have declared the unqualified supremacy of parliament. There are no exceptions. The judiciary unreservedly respect the will of parliament as expressed in statutes.” Again, the focus seems to be that the court shall always accept the parliament as supreme and as the only law-making authority, and shall always follow its decisions.
Some situations where judges give decisions based on precedents that are completely clear but not compatible with the modern era, show that judges are in fact making or discovering laws which would subsequently become new case-laws or precedents. In the UK, a binding precedent means that lower courts must follow decisions of the higher courts, yet we can see examples of judicial activism. For instance, in the case of R v R (1991), the defendant had raped his wife while the couple was living separately, and since the concept of legal separation did not exist at that time, the House of Lords overturned the very old rule of matrimonial exception to rape (that did not account for rape within the marriage) and defendant was found guilty of raping his wife. So here we can see that the Sexual Offences (Amendment) Act 1976 said that “unlawful” intercourse was to be considered for rape, and that such rape could only have only been committed outside the bounds of matrimony. But the decision was overturned on the basis of absence of the wife’s consent to intercourse because she considered the marriage to be over.
Apart from judicial activism in precedents, judges also give decisions by interpreting statutes. In Fitzpatrick v Sterling Housing Association (2001) the House of Lords held that the definition of the term “family” in Rent Act 1977 included the same-sex partner of the deceased tenant. Although the law at that time included heterosexual couples only, court held that the change was in accordance with contemporary notions of social justice.
In contrast to the declaratory theory, it could be said that judges make laws and create exceptions to the law-making rules to a great extent. Another example of law-making by judges is the concept of promissory estoppel developed by Lord Denning which was an exception to the doctrine of part-performance in Pinnel’s case (1602). Examples like these show judges do sometimes give decisions that seem to be creating new laws.
Furthermore, in the case of R v Registrar General (ex parte Smith) 1991 CA, the defendant was refused a copy of his birth certificate because he was likely to murder his mother. According to Section 51 of UK’s Adoption Act 1976 a person could obtain details of his or her birth certificate on turning 18, however in this particular case, it would have been absurd for the court to follow the words of parliament literally without giving any thought to the consequences. So according to Sir Stephen Brown (President of the Family Division of the High Court of England and Wales), an implied exception existed in the enforcement of Acts for the court to interpret the statutes to prevent a serious crime in future. This principal was not limited to crimes which an applicant intended to commit and it depended upon the facts of each case. The rule of law should be applied in the light of likelihood of the crime being committed and the gravity of its consequences. In this case there was a serious risk to the life of the defendant’s natural mother and the registrar was correct not to grant him access to the information. So it shows that sometimes judges have to give decisions by interpreting statutes accordingly.
Dworkin has said that the law is never incomplete and there are no gaps to fill while Hart has said that there are some situations where the law is incomplete and judges must fill those gaps and thus create laws. The debate on whether judges do make law or have the power to make law, is still open.
- Sixthformlaw: Declaratory theory
- Sixthformlaw: Declaratory theory, Lord Scarman
- Case Search: R v R  1 A.C. 599 (Westlaw)
- Kate Malleson, Case Law, Precedent and Judicial Law-making; The Legal System (2007)
- Case Search: R v Registrar General Ex p. Smith  2 QB 393 (Westlaw)
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