Law reform role of judges - declaratory theory

Declaratory Theory
Judicial legislation is retrospective Bentham	The English philosopher and jurist Jeremy Bentham (1748-1832) in Volume V of his Works. "Do you know how they make it? said, "It is the judges that make the common law, just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way judges make laws for you and me."
The debate	"Declaratory Theory" holds that judges do not create or change the law, but they `declare' what the law has always been, but not "discovered". *A practical example - Donoghue v Stevenson* [1932] HL The facts On 26 August 1928 May Donoghue drank a bottle of ginger beer that contained a decomposing snail which made her ill. Nearly five years later (1932*) the case was heard by the House of Lords, the case was called Donoghue v Stevenson* [1932]. May Donoghue asked the judges to decide that the ginger beer manufacturer, David Stevenson, should pay her damages (compensation) because his product had made her ill. The problem On 26 August 1928, the day May Donoghue drank the beer, the law - as it was understood then - was on David Stevenson's side. In 1932, the judges were asked to change the law four years after the event. If they changed the law in such a way that it was on May Donoghue's side the change would have to be effective on the day she drank the beer; that is in 1928. The solutions The judges changed the law to say that back in 1928 David Stevenson owed her a duty to make sure there were no foreign objects in the bottle. By applying this new law she won. They changed the law on 26 May 1932 and it had effect from 26 August 1928 onwards. There are two ways of looking at this. Judges create law: The law was wrong and the judges created new law which had retrospective effect (worked back in time). Judges declare law: The other view is a "fiction", that the law was always the same and no one knew, the judges had found it, they "declared" the law. The following comments have contributed to the debate.
In one law report Ms Donoghue is referred to as Mary and another as May. She is also known as M'Alister, probably she married before the case was finished.

Lord Radcliffe in 1968, In a book entitled ‘Not in Feather Beds’	"There was never a more sterile controversy than upon the question whether a judge makes law. Of course he does. How can he help it?"
Lord Reid in a speech entitled "The judge as lawmaker"	"We do not believe in fairy tales any more, so we must accept the fact that for better or worse judges do make law."
Lord Denning. ‘The Reform of Equity’	*"The judges do every day make law, though it is almost heresy to say so."*
Professor Jaffe in ‘English and American Judges As Lawmakers’	‘There is no reason why, given the policy, a judge should not be a good activist lawmaker... there seems to be no limit to what they could do if only they would unshackle themselves from their precedents.’
Lord Devlin ‘Samples of Lawmaking’ (1962)	"I doubt if judges will now of their own motion contribute much more to the development of the law..."
Lord Reid The Law and The Reasonable Man 1968	‘I suppose that almost every doctrine of the common law was invented by some judge at some period in history...when he invented it he thought it was plain common sense...But, with the passage of time more technically minded judges have forgotten its origin and developed it in a way that can easily cause injustice...judges can get the thing back on the rails...if it has gone too far we must pin our hopes on Parliament.’
Professor W. Geldart	With precedent you ‘...get an impenetrable maze of distinctions and qualifications which destroy certainty ...we must find a middle way which prevents precedent from being our master.’
Professor W. Geldart	Judicial precedent on the one hand, provides advantages of certainty, possibility of growth, great wealth of detailed rules, and a practical character of these rules. And on the other hand of being restrictive in being rigid ‘the binding force of precedent is a fetter on the discretion of the judge, illogical distinctions, bulk and complexity.’
*A superior court can disapprove* of a decision**	Judges can get things 'back on tracks' without completely changing the law. Not overruling it but expressing doubt as to the validity of the previous rule applied by the inferior court.
In the Times Law Awards ceremony 1997 Lord Mackay LC	The duty of the judge is to apply the law as he finds it, not to seek to rectify perceived inadequacies by the use of creative interpretation. He also said where there is a gap in the law our judges are required to take account of precedent but where this is unclear he must decide the best way to proceed and the result may be a decision which is in some way innovative ... but the fundamental principles were always part of the law. Thus he believes judges find law by applying already existing principles.
Lord Diplock in Dupont v Steel 1980	Parliament makes the laws, the judiciary interpret them.
John Austin (1790 - 1859) legal philosopher	Austin said that he could not understand how any person can suppose ... that society could have gone on if judges had not legislated.
Lord Denning in Re: Sigsworth	Lord Denning stated that when they were interpreting statutes it was necessary for judge to correct omissions left by Parliament: "We fill in the gaps."
Lord Scarman in McLoughlin v O’Brian	Lord Scarman took a middle course, he said; "The objective of judges is the formulation of principles; policy is the prerogative of Parliament."
Denning -v- Simonds
Simonds dominated the House of Lords until 1962	Lord Simonds represents the traditional and dominant posture of the English Judiciary – judges should be passive, Denning advocated activist lawmaking.
Simonds overruled Denning that a third party cannot sue on a contract	An example of the two approaches to law making was the issue of 'privity of contract', Denning took the opposite view to Simonds. This rule has now been changed by statute to accommodate EC legal exchange.
Kleinwort Benson v Lincoln CC [1998] HL	Lord Wilberforce said that to declare from that date a new and more extensive principle of liability would affect many people's assumed legal rights. Any such new direction must be set by Parliament for the future, not by the courts retrospectively.
Parliamentary law is prospective	A new Act of Parliament changes the law for the future and do not intended it to act retrospectively; there are some exceptions to this rule, see here.
Lord Esher in Willis v Baddeley (1892)	“There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.”
Declaratory Theory, is obvious in practice	As a trial always occurs after the event complained about the judge is bound to state the law at the time of the event; that is as it was before the trial date. It follows that he is simply stating the law as it was, even though he appears to be changing it. He is changing it back to what it always was.
So how far back do the judges claim the law they have ‘found’ existed?	Briefly, the theory would suggest that is a fixed date, 3^rd September 1189, legal memory does not go back before then. Sometimes called "Time Immemorial” This date was set by the Statute of Westminster 1275, it is the date of the coronation of Richard I.
Declaratory Theory and jurisprudence
Universal Truths, or is there an occasion on which the law started	These are two options put forward by students of jurisprudence. The first is that they are self-evident truths based on Natural Law. The other based on Positivism that the law was indeed created at an unspecified time in history. If either of these is accepted then clearly judges do not make law, and Declaratory Theory is correct.
Realist Theory	Lord Reid: Declaratory theory is a fairy tale that no one believes. Judges make law within narrow confines. Developing or creating new law is inevitable to do justice, or to bring law in line with social changes. Successfully explains overruling
Modern problems confound the Declaratory Theory	In R v Preddy, the defendant was acquitted of defrauding a bank by means of a money transfer. How could the law that was applied have been in existence for all time, and ‘discovered’ when the technology (bank money electronic transfers) has only existed for 50 years or so?
The Kleinwort Benson anomaly	This case involved a complicated 'swap' investment process, to understand what actually happened does not assist us in looking at Declaratory Theory, but we need to know two legal principles that existed at the time the House of Lords decided Kleinwort: Money paid by mistake of fact is recoverable, as a matter of law Money paid my mistake of law is not recoverable, as a matter of law (ignorance of the law excuses no man)
Their Lordships agreed that in the Kleinwort case money should be recoverable as a matter or law, effectively changing the ‘old’ understood legal principle	The problem was should this apply to future cases or was the House declaring that that was what the law always was? If they were declaring that the law always was that money paid by mistake of law was recoverable (and not what everyone understood to be the case) then all previous incidents of money paid because of a mistake of law would have been decided wrongly or worse still claimants who had been advised they had no cause of action could now litigate, and recover assets.

The reasoning of the 5 Law Lords was divided but the result was to give effect to Declaratory Theory, reluctantly, it seems.
Criminal Law
Declaratory Theory and Criminal Law	In R v R (rape - marital exemption) [1991] HL the defendant was convicted of raping his wife, anyone who had obtained legal advice for 300 years prior to this occasion would have been told that the law did not recognise such an offence. Similarly, in *Shaw* the law knew no offence of Conspiracy to Corrupt Public morals.
R v R (rape - marital exemption) [1991] HL	This case did not create a new offence merely declared that it had always been an offence. Although no one could have known it was an offence. So the dictum ‘ignorance of the law is no defence’ should read ‘ignorance of what the law is going to be is no defence.’
SW v United Kingdom (1995)	Concerned a man who was prosecuted in 1994 for a rape he had allegedly committed in 1990. If was far from obvious that marital rape was illegal in 1990. The ECHR upheld the criminal conviction, on the basis that when the rapes occurred, the defendants could have reasonably foreseen that the criminalisation of martial rape was likely.
Strasbourg jurisprudence recognises the courts power to do this	“…even in the criminal law and the definition of criminal offences, the law can be developed by domestic courts through judicial interpretation from case to case.” R v Governor of HMP Brockhill Ex parte Evans ( 2000)
Article 7(1) of the European Convention on Human Rights	No Punishment without law 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
Professor Atiyah’s commentary on Declaratory Theory in “Judges and Policy” (1980)
Judge can hide behind higher principles	Firstly, judges can use it to evade responsibility by shifting criticism of his judgment onto `the law' as a higher principle, and that they are ‘bound by the law’.
Judges only make law within narrow constraints to do justice	Second, because parliament is the proper place for legislation to be made, judges should make law only within narrow constraints. They should do so to do justice. This approach gives frustration to interpreting ratio of particular cases, which result in the misapplication of law in later cases.
Judges are not making law which is parliament's role	Third, judicial lawmaking is tolerated only because it is not exercised openly, and if judges made law without retrospective effect this would effectively mean they are engaging in ‘naked legislation’. Judicial creativity using Declaratory Theory means that law making is done on the sly.
Declaratory Theory preserves the fiction of precedent	Fourth, many judges appear to believe that the only alternative to Declaratory Theory is to abandon the doctrine of precedent and the separation of powers, despite this not occurring in the USA.
Give the appearance of impartiality	Fifth, judges can hide behind Declaratory theory to prevent the perception that they prefer one view of the law to another, and thereby retain public respect for the judicial impartiality.