Meaning and Concept of Declaratory Theory of Precedents
The Declaratory Theory of Precedents states that judges do not make law; they only declare or expound the existing law. According to this theory, the law already exists in customs, statutes, and principles of justice, and judicial decisions merely discover and clarify it. The theory is based on the belief that courts act as interpreters, not legislators. This view supports the doctrine of stare decisis, ensuring continuity and certainty in law. The declaratory theory emphasizes that judicial precedents are authoritative because they reveal what the law has always been, rather than creating new law.
Juristic Views and Legal Basis
The declaratory theory is closely associated with jurists like Sir Matthew Hale and William Blackstone. Blackstone famously stated that judges are “the depositories of the laws,” whose duty is to expound, not to innovate. In the Indian context, courts often describe their role as interpreting the law laid down by the legislature. Article 141 of the Constitution of India provides that the law declared by the Supreme Court is binding on all courts. The word “declared” itself reflects the declaratory nature of judicial decisions, reinforcing this theory.
Importance and Criticism
The declaratory theory promotes legal certainty, stability, and respect for judicial decisions. It reassures society that judges are not arbitrarily creating law. However, the theory has been criticized for being unrealistic. In modern legal systems, courts often fill legislative gaps and adapt law to new situations, effectively making law. Judicial creativity in constitutional interpretation challenges the pure declaratory view. Despite criticism, the theory remains relevant as an ideal that restrains excessive judicial law-making.
Real-Time Application
A practical example of the declaratory theory can be seen when courts interpret ambiguous statutory provisions. For instance, when the Supreme Court interprets the scope of Article 21 of the Constitution, it is said to declare the true meaning of the right to life rather than create a new right. Lower courts then follow this interpretation as binding precedent. This shows how judicial decisions operate declaratorily in practice.
Mnemonic for Easy Understanding
A simple mnemonic to remember the declaratory theory of precedents is “DECLARE”.
D – Do not create law
E – Explain existing law
C – Clarify ambiguity
L – Law already exists
A – Authority of courts
R – Ratio decidendi
E – Ensures certainty
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