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

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

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.

Take your learning further

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses.

If you are new to University-level study, we offer two introductory routes to our qualifications. You could either choose to start with an Access module, or a module which allows you to count your previous learning towards an Open University qualification. Read our guide on Where to take your learning next for more information.

Not ready for formal University study? Then browse over 1000 free courses on OpenLearn and sign up to our newsletter to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371