Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.2.1  The declaratory theory of law

The declaratory theory of law represents one side of a debate about whether judges actually make law when they produce judicial decisions or merely declare what the existing law is. The declaratory theory in its starkest form says that ‘the judge is no more than the voice of an autonomous legal system that she/he, through her/his legal training, is able to gain access to but is in no way able to influence’ (Slapper and Kelly, 2013, p. 472). The logic behind this approach is that the judge is not making the law but merely declaring what Parliament has created. If this is accepted, the judge does not make the law but is only applying the legislation (legal rules) created by Parliament. While it is generally understood that in practice judges do not merely declare the law, they are also often careful in their judgments not to suggest they are creating new law, because this is beyond their formal constitutional role. You saw earlier that it is difficult to see law as a process of pure, logical reasoning, despite the apparent objectivity and neutrality of legal judgments, which give the impression that judges are simply figuring out and applying what the law already says.

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