Judge-Made Law

Judge-Made Law

Judge-Made Law

Introduction

Declaratory theory of legal decision making is considered as the most authentic and the most genuine principles of the English law system. According to this law the judges are needed to take decisions, they do not change or develop the law and rules, they just announce the laws. Therefore, no new laws and principles are developed by the judges and the new principles and laws are only created by the parliament of the country (Gerhardt, 2008, pp. 52-55. For instance, in case of the “Criminal Justice Act (2003), the parliament is responsible to make major and the most essential variations to the “Criminal Law”, removing the extensive resistance that formerly survived from being accuse twice for the similar offence (Beever, 2013, p.n.d). According to the researches and studies, when the Act came into power, the law or the principle simply changed. The proceeding paper discusses the traditional explanation of the declaratory theory as per the Lord Esher in Willis v Baddeley (1892) (Kaczorowska 2010, pp. 775-777).

Therefore, all the facts and concepts regarding the theory of declaratory are demonstrated in the proceeding discussion. This may help the reader in understanding the significance of theory of declaratory in the world of law. Therefore, it may help the judges in making correct and effective decisions while handling the critical court cases (Keeffe & Bavasso, 2000, pp. 74-76).

Discussion

Declaratory Theory

The declaratory theory is promulgated on an idea that the decisions of the judges cannot create new laws, instead of which they can only represent the indication regarding the actual law. However, this concept is no more accepted (Denningzcave, n.d., p.n.d.). There are three major causes for the perseverance of the declaratory theory. In this first case, it appealed in the division of the powers. On the second side, it obscured the idea that the judge made principle is retrospective in its consequences and lastly when the judges tackle with a different, unusual or new point of view, they try to show as if the response is given by the common and the usual law.

Why the Declaratory theory is vulnerable and weak?

As per the Lord Esher in the Willis v Baddeley (1892), the standard and the traditional explanation of the declaratory theory demonstrate that, “in actual case, there is nothing like the judge made law. It is because of the reason that, in case of laws and principles, the judges cannot create the principles and laws, instead of this, they commonly have to apply and implement the pre-existing laws and principles to different situations as to which it has not formerly been commandingly put down that, only this law is acceptable” (Denningzcave, n.d., p.n.d.).

According to this, it is undeniable for the judges of the court to change and create new laws and principles. There are several cases which show various important developments and progresses in the law. These cases may include Hedley Byrne v Heller, Donaghue v Stevenson and Wednesbury (Elliott & Quinn, 2007, ...