Precedent/Declaratory Theory

Question 1

Practice Statement (Judicial Precedent) 1966?

Answer 1

• House of Lords/Supreme Court acknowledges importance of precedent but recognises that ‘too rigid adherence’ can lead to injustice and the prevention of the development of the law
• allows departure from self-binding precedent where ‘it appears right to do so’
• -> Lord Brige, ‘an effective abandonment of our pretension to infallibility’

Question 2

Advantages of precedent?

Answer 2

• Certainty: consistency and fairness, no random decisions, like treated alike, ‘no new situations’
• Time Saving: established law that can be referred to
• Flexibility: scope for law to change, e.g. Practice Statement 1966 for SC, ability to distinguish

Question 3

Disadvantages of precedent?

Answer 3

• Complexity + volume: long and sometimes unclear judgments (ratio v obiter ambiguity)
• Rigidity: difficulty in novel situations, bad precedent remains (although PS 1966 addresses this)
• The slowness of growth: piecemeal development (e.g. that of negligence), reform needed but precedent hasn’t reached that stage
• Illogical distinctions: precedent is binding so distinguishing arbitrarily just to initiate change: different precedents in very similar cases

Question 4

Declaratory Theory?

Answer 4

The principle that judges don’t make law: they declare it as though it had always been, and that it was just undiscovered
- judge-made law: pre-existing law that judges discover and not something that they create

Question 5

Judicial Creativity Theory?

Answer 5

Judges create new law and it has retrospective effect

Question 6

Declaratory Theory: in support?

Answer 6

• Blackstone: in the 18th century, judges = ‘living oracles’, revealed the pre-existing law. Judgments not the law but evidence of it.
• Separation of powers: judicial deference to parliament.

Question 7

Declaratory Theory: in opposition?

Answer 7

• Austin: ‘childish fiction’
• Potential that people (even legal persons) could suddenly find that the they had grounds for litigation arising from things that happened in the past but had no reason to know would be actionable.
• Lord Reid’s ideas: creativity in confines
• case of R v R: rape in marriage: held that sex in marriage = always consensual. This case changed that; but clearly the law hadn’t always been this way

Question 8

Lord Reid and Declaratory Theory?

Answer 8

Lord Reid:

• Declaratory theory is a fairy tale that no one believes.
• Judges make law within narrow confines.
• Developing or creating new law is inevitable to do justice, or to bring law in line with social changes.
• Successfully explains overruling