Declaratory Theory: A Fairy Tale

Declaratory Theory Is A Fairy Tale

Blackstone proposed the declaratory theory, namely judges are ‘not delegated to pronounce a new law, but to maintain and expound the old one’. Lord Esher’s judgment in Willis v Baddeley contended that judges ‘frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.’ They believe that judges’ role is just to discover law and apply it to different circumstances. However, this theory then was widely condemned by lawyers, judges, and scholars. Lord Reid once described the declaratory theory as fairy tales and established realist theory. In modern perspective, judges with law-making authority lay down the common law. The law is often created rather than merely discovered.

First of all, the declaratory theory can cause absurdity. In Entores v Miles Far East Corp , Lord Denning set aside the previous postal rule and decided that communication through telex was effective immediately when received. In his judgment, he took …show more content…
In Bolam v Friern Hospital Management Committee , a traditional test was laid down: ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ But in the recent case Montgomery v Lanarkshire Health Board , judges decided that ‘patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession.’ The willingness to accept the medical treatment is no longer a mere professional medical judgment but instead a patient’s personal right. This is a clear departure from the traditional rule of determination to accept medical treatment. Judges so changed the law because of the gradual change in doctor-patient relationship and the progressive emphasis on human rights in