Rehabilitating the Declaratory Theory of the Common Law
Bibliographic Data
| ID | 13046285 |
|---|---|
| Authors | Brian Zamulinski (0000-0003-4605-7697, University of Saskatchewan, corresponding author) |
| Year | 2014 |
| Volume | 2 |
| Issue | 1 |
| Pages | 171-186 |
| Publication date | 2014-01-01 |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Journal of Law and Courts (JOURNAL) |
| Journal identifiers | ISSN: 2164-6589 • E-ISSN: 2164-6570 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.1086/673873 |
| OpenAlex | W2030363845 |
| Language | EN |
| References cited | 11 |
The declaratory theory is that “judge-made law” is discovered, not created. This article describes a scenario in which there develops a legal system such that the declaratory theory is true and shows that judges in the scenario could literally discover what they could justifiably call law. Positivist objections to the theory are rebutted. If true, the declaratory theory has implications for contemporary systems that combine legislation and judge-made law
Legislation · Political science · Judicial and Constitutional Studies · Law · Legal principles and applications · Multicultural Socio-Legal Studies
| Highly cited | No |
|---|