The declaratory theory of law is quite simply that judges do not make or create the law, the merely declare what the law is and what it has always been. 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. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning.
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The legislative body of the United Kingdom, Parliament, is elected and therefore, in theory, a reflection of the majority view on key issues such as euthanasia, gay marriage and terrorism measures. The reality is the English legal system has two main sources of law when it comes to the determination and deliverance of justice. There is the common law doctrine of precedent which has evolved with the judiciary and as a result, some would argue is highly uncertain. The second source of law takes the form of statute and as a result of the legislative wording that exists, is significantly more certain. Regardless of an individual’s view on the matter, it has to be accepted, as stated by Lord Irvine of Laring, that, within a certain limit, the role of judges will require a degree of legitimate law-making. The limits of this law making ability is defined by the English constitution and entangled key principles, such as parliamentary supremacy. “The judges do every day make law, though it is almost heresy to say so.” The reality is that the English Legal System has developed as such that the judiciary do demonstrate a degree of judicial creativity which results in the creation of law. There are two key cases, well known to all English lawyers which demonstrate the fact that the judiciary do make the law. The first is the famous tort case of Donoghue v Stevenson . In this instance, the claimant was asking the judiciary to develop a principle that was otherwise not in existence. The problem was that the claimant was asking the judges to not only change the law so that it supported her case but to also retrospectively apply that law to the event in question (i.e. the snail in the ginger beer incident). The result was that in 1932 the judges stated that the defendant had a duty of care towards the claimant that did not actually exist in 1928 when the incident occurred. There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in this manner. The first is the most obvious but equally the most constitutionally concerning theory that the judges simply created new law and then retrospectively applied it to the event in question.
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