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Do judges declare law or make law

University of Western Sydney Law Review

Refer to different theories in this regard. There are two contrary theories regarding the question as to whether the judges declare the existing law or make the law i-e.

Theory that judges declare the law Or Declaratory Theory. Theory that judges make the law Or Legislative Theory. According to this theory no new law is created by the Judge.

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Judges only discover the existing laws, the particular principle, that governs individual cases. Through their interpretation they give a new shape to the existing law. Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates, in the strict sense, the Judges only expound the law, and their decisions are the best evidence of what law is.

A necessary result of this theory is that the effect of the decision is retrospective, for it does not only declare what the law is but what it always has been. Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. This do judges declare law or make law is known as the traditional orthodox theory of judicial precedent.

Theory that Judges Make the Law Or Legislative Theory—The second theory is that Judges do not declare law but make law in the sense of manufacturing or creating entirely new law. According to Lord Bacon, the new points decided by the Judges is a direct contribution towards law-making.

Dicey supports this view and gives example of English Common Law which has do judges declare law or make law made by the judges through their judicial pronouncements.

Gray also supports this law-making theory and says that Judges alone are the makers of law. He discredits do judges declare law or make law declaratory theory of judiciary law. Unquestionably there is much to be said for this point of view: Judges are without question, law-makers but their power of law making is not unrestricted; it is strictly limited. Salmond a strong supporter of this view says that he is evidently troubled in mind as to the true position of precedent. He further says that both in law and equity declaratory theory must be totally rejected.

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Conclusion—The above theories about making of law by the Judges are not exclusive of each other but they are rather complementary. And it will be seen that neither the purely declaratory theory nor the purely legislative theory represents the whole truth. Judges develop the law but cannot be said to legislate.