Samuel Beswick (Peter A. Allard School of Law, University of British Columbia) has posted The Declaratory Theory of Judicial Law-making (Canadian Journal of Law & Jurisprudence, vol. 39, 2026 (forthcoming)) on SSRN. Here is the abstract:
It is often said that natural law and interpretive perspectives of adjudication are incompatible with the notion of judicial law-making, in contrast to positivist and legal realist perspectives that are hostile to the declaratory theory. One must either accept the declaratory theory, or accept that judges make law, but one cannot accept both. This article draws upon the jurisprudence of H.L.A. Hart, Karl Llewellyn, Lon Fuller, and Ronald Dworkin to push against the idea that these conceptions of the common law judicial method are fundamentally discordant. It is argued that properly understood the declaratory theory can be reconciled with the notion of judicial law-making.
And from the paper:
The notion that judicial decision-making entails judicially recognising the law ultimately reflects, I suggest, the core insight of the declaratory theory.154 It is that the law-making function of judges is inextricable from the adjudicative function. It is not that a judge in deciding a case discerns the law for and from “eternity,” as Austin portrayed the Blackstonian position. On the contrary, the judge’s task is to determine the law for a particular time period. What the declaratory theory insists is that the critical time period is not the date when the prevailing position in law is declared—i.e. not the date of judgment. Rather, the enquiry is into the law that properly governed at the time of the parties’ dispute. The law as recognised today is tethered to the past by the context of the parties’ dispute. The judge’s role is to discern what the law fairly was when the dispute arose by determining how it ought to have been understood by the parties all things considered. The judge then declares the law with the benefit and the constraints of hindsight. The room for juridical novelty is counterbalanced by the need to do justice in the case at hand.
In this sense, if it be found that a former precedent conflicts with a more fundamental rule or principle or understanding of the relevant law, to overrule that precedent is to declare that it was not law at the time of the parties’ past dispute. What the common law judge does not do, under a declaratory conception of judicial law-making, is presume to decide cases by legislating what the law should be from now on. That would be “to pronounce a new law,” rather than “to maintain and expound” the law prevailing for the parties who have come before the court.
Highly recommended.
