The External Laws Programme Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Essay Title:

‘There can be no real argument about it: judges make law. Declaratory theory is more or less nonsense.’

Candidate No:

Although Judges always say that they are actually declaring the law but it was also seen in the history they have played a leading role in making law. Some times that created huge criticism and sometimes it was welcomed by the people. It must be accepted that in this way or that way their denial of law making or their law making is effecting sometimes directly or indirectly the "Doctrine of binding Precedent". [1] 

So Before going any further we need to have some basic idea about this doctrine of binding precedent. The doctrine of binding precedent is simply based on the Principle of stare decisis i.e to stand by the decided cases. That is Court of Appeal is generally bound to follow its own previous decision and each court is bound to follow the decision above its hierarchy [2] , so at present the highest of United kingdom is UK Supreme court which was previously known as House of lords whose decisions are binding on all the courts of UK. The main essence of binding precedent is to ensure consistency and certainty. In the past it had been seen that sometimes it becomes really difficult to maintain certainty and fair decision at a time for this reason Practice statement 1966 was introduced by HL and some guidelines were introduced by Court of appeal (CA) in Young v Bristole Aeroplane [3] as per which they can deviate from their previous decision whenever it becomes an obstacle to dispense justice which is the fundamental objective of law. [4] 

It has always been the matter of argument that judges do not make law they simply declare the law as it was, and this is Blackstone’s declaratory theory. Sometimes this view was accepted and sometimes this view was denied. There are many reasons of persisting this theory, firstly this theory attracts separation of powers, secondly it hides the fact that judge made law has retrospective effect and last but not the least whenever judges tries to establish a new, unusual or a different point they tend to show that the answer was provided by the common law [5] . Actually English law is mainly based on case laws and court plays a vital role in making common law. Whenever there was new situation judges did not hesitated to make laws. One of the key feature of common law is doctrine of binding precedent because of this lower courts have followed the decision of the higher courts and this obviously include those decision where the higher courts introduced new law. But this argument was rebutted by many by saying that judges are actually declaring the natural law(i.e the idea that the law is based on basic, self evident principles of ethics) this law can also be termed as universal law that is the law always existing the universe. [6] This argument can be rebutted if the decision of Entores Ltd v Miles Far Fast Corp [7] is taken into account where it was held that postal rule can be applied to telex the judgment of this case was given by Lord Denning LJ, where he did not referred to any existing case law and if declaratory is correct then his decision did not make any law rather he was simply declaring the law but since he did not refer to any existing case law he might have derived it from natural law and it is really hard to believe that the law of "when a telexed" contract is formed already existed as natural law and it is also a matter of common sense that it is not possible for people of 15th century to know that postal rule is applicable to telex rule then how come it can be termed as natural law. Lord Esher in Wills v Baddeley [8] said that there is no such thing as judge made law, for judges do not make law they frequently apply existing law to circumstance but actually it has been that the history is speaking for itself and it is undeniable that judges have made law and they are still making law. In fact this law making habit of the judges have become more acute after the practice statement 1966. That means judges are actually making law in the name of desperation of justice, such a glorious example is – Donoghue v Stevenson [9] where Lord Atkin established the whole new form of law the law of negligence. Another relevant case is Hedley Byrne & Co Ltd v Heller & Partners Ltd [10] where the liability of negligence was extended for negligent miss statement. [11] 

Judges have always tried their best to hid the fact that they are making law and by doing so they have sometimes messed up things pretty badly, such a glorious example is Klienwort Benson Ltd v Lincon CC [12] where it was held that money paid under the mistake of law is recoverable, before this it was widely believed that inability to reclaim money paid under the mistake of law is unjust and both the parties and all the five judges agreed on this point. But the problem actually lied somewhere else that this decision of allowing the new ability to reclaim money should operate retrospectively (i.e should apply to new cases or to past case). Here in this case Claimant had already paid its money to the Defendant, so it was argued by the claimant that it should operate retrospectively. On the other hand the defendant argued against it. The problem was if the decision was given in favor of the claimant then it must have retrospective effect which is not an indirect consequence of declaratory theory. However the question may arise – Why we are discussing on this matter giving so much importance? Well of course there are some obvious reasons if this allowed to have retrospective effect then a large number of litigation may arise where people was laboring under the mistaken law and may disable the whole legal system by bring those old decided case back to life, interestingly judges have always tried to deal with this acute problem in a interesting manner.

Firstly, Lord Goff said that it is universally recognized that judicial development of common law is inevitable; if there is no such development common law would be the same as it was during the ancient period of King Henry II. However there was no such official pronouncement about it. He was prepared allow the claimant recover the money because, as per him the claimant may be laboring under the mistake of law but simply did not know about it. However Lord Browne –Wilkinson tried to give a solution. He held it is possible to upheld the declaratory theory at the same time it is possible to avoid retrospective effect and ended up getting really unique but absurd solution he said at the time of each payment it was a settled law and the Claimant was not laboring under any mistake of law as it was the at that time. So he actually wished to leave the declaratory theory intact by sacrificing core objective and base of law that is "Justice". Though all the other judges in this case tried their best to establish that they are not making law but the Bold Judge Lord Lloyd did not hesitate to criticize declaratory theory as per him House of Lords is doing more than just making law and if it is inconsistent with the declaratory theory then time has come to say so. [13] Finally the Claimant was allowed to recover the money and the House by a majority of three to two abolished 200year old common law rule [14] 

However the effect of retrospectivity is far worse in criminal law as it becomes human right issue and it is direct violation of Article 7(1) of European Convention on Human Rights that is freedom from Retrospective Criminal Liability and a mention worthy case regarding this issue Is R v R [15] here charge was brought against a man who raped his wife, and the argument on the defendant’s part was raping wife was not illegal. This at this time may sound wicked but this was not illegal at that time. If someone asked a lawyer at that time that is it legal to rape my wife then he probably would have replied that it does not seem to be illegal. It is a common sense that it was purely an unjust law and such a flaw could not be tolerated and so the judges decided that marital rape was illegal abolishing a 400 years old tradition.

Problem not actually there that HL has abolished a 400 years old tradition problem is actually our old friend (or enemy) retrospective effect cause after this case a lot of cases were heard and was give judgment in light of decision given in R v R [16] example - The of SW v UK [17] where the fact were almost same and judgment was given against the defendant having retrospective effect the case of R v R [18] was also applied in R v Laskey [19] 

However it was never like that Judges have taken the oath of not following the declaratory theory and the situation was never like that after establishing a law they are trying to hid under the blanket of declaratory theory in fact there are cases where they denied to make law. In C( A Minor) v DPP [20] court denied to abolish the presumption that 10 – 14 child cannot commit crime and referred the matter to the parliament and some guideline were also given Lord Lowry which must be followed at the time of making the law. Thus they upheld the declaratory theory and Parliamentary Supremacy and also upheld the separation of power. But this guideline was not always followed in cases like R v Dica [21] and R v Clarence [22] . Because of such bold behavior of Judges they have been severely criticized for overstepping in to the boundaries of Parliament. [23] 

In the end it can be said that judges actually have taken the oath of dispensing justice, that’s why whenever there was obstacle to dispense justice they have deviated from their own previous decision and even created new law by denying (indirectly) the declaratory theory and overstepped in the boundary of parliament. May be time has come when we start to believe and accept that judges do make law.