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

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3.2  The declaratory theory and judicial deference

Alongside the constitutional principles of parliamentary sovereignty and the separation of powers, there exist some principles and theories that encourage the idea that the judiciary should not and does not interfere with Parliament’s sovereign law-making ability. Here we consider two of these, the declaratory theory of law and the principle of judicial deference. The declaratory theory of law is a theory of how law is interpreted by the courts in practice: it supports the idea that judges do not impinge on Parliament’s law-making competence. Judicial deference is a constitutional principle that supports the idea that the judiciary should not overstep its constitutional role in relation to Parliament.

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