The Declaratory Theory of Law, Today and Yesterday

Two items--one new and one old--on the declaratory theory of law, whose absurdity seems to be taken for granted in our own day.

First, a very rich and subtle paper by Alan Beever, The Declaratory Theory of Law, 33 Oxford Journal of Legal Studies 421 (2013). Here is the abstract:

This article examines the declaratory theory of law and defends it from the most prominent modern attack on it. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. The article further examines the common law’s continuing commitment to the declaratory theory, a commitment that remains strong despite the considerable hostility of the academy. It explains that this commitment reflects the nature of the common law.

And from the paper:

[John Hamilton] Baker [in his volume, An Introduction to English Legal History] utilizes an example to illustrate his analysis of the declaratory theory as it relates to equity. This ′stock example′ is that of a debtor who gave a creditor a sealed bond, who later repaid the money, but did not make sure that the bond was cancelled. Imagine that A borrowed money from B and gave B formal written evidence of this debt, later repaid that money, but did not cancel the document that he had given B. In these circumstances, the common law courts treated the bond as irrefutable proof that the debt still existed. Hence, even if A could prove that he had repaid the debt, the common law courts held such evidence to be irrelevant. This is where the Court of Chancery stepped in, ensuring that the debtor did not have to pay twice, thus altering the outcome that the common law alone would have produced. How can this be understood as fulfilling the law?

As Baker argues, ′it was not that the common law held that a debt was due twice ... such [a] proposition ... would have been dismissed as absurd′. In other words, it was a principle of the common law that debts must be paid only once, or rather that a (once) paid debt no longer exists. However, the common law was unable to enforce its own principle, because it also insisted on a high degree of certainty that meant that written deeds trumped oral evidence no matter how probative the latter was. Hence, equity fulfilled the common law by producing the result that the common law would have produced were its rules of evidence less pedantic. It did so, not by maintaining that the debt had been paid and so no obligation existed. That would have involved too direct a confrontation with the common law. Instead, it insisted that, though the obligation existed, it would be unconscionable for the creditor to enforce it.

Here, then, we see equity being applied in order to produce the results called for by the principles of the common law, where the common law was unable to achieve those results because of some impediment. Though the creation of this equitable rule changed the positive law, it did so in accordance with the principles of that law and in that sense preserved and fulfilled the law. It was surely in this sense that the medieval councillors and chancellors believed that they were declaring what the law already was. Of course, they were aware that they were altering the positive law. They knew that but for their judgments B could enforce the debt and that it was their judgments that prevented that from happening. They knew that this amounted to a change in what is now called the law. In fact, they made their judgments quite self-consciously in order to produce that change. But they believed that they did so in accordance with the principles of the law. To repeat Baker′s words, ′They were reinforcing the law by making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, were hindering its attainment by due process. They came not to destroy the law, but to fulfil it.′

Second, this review of an interesting looking volume on Lord Coke by Elio A. Gallego Garcia, Common Law: El Pensamiento Politico Y Juridico De Sir Edward Coke. From the review:

As Gallego puts it, every conception of the law is defined by three great questions: is the law the product of the will or of the reason? Do we recognize or not a natural law superior to any human law? And finally, what role has custom in relation to the positive law? Coke’s vision of the law is extremely relevant to our days. We have grown used to judges who reinterpret laws in the most curious ways, typically in accordance with their own views of the good rather than the language of the law before them.

This spectacle seems unstoppable, in the United States at least. But Coke, a person who devoted his whole life to the law, tells us something completely different. Law is not something we construct: it already exists. We receive it, we discover it, and we declare it. Judges cannot reshape it, doing violence on it to make it fit the latest sociological fashion. The attempt resembles more the old sophists who were good at distorting reality but unable to found a just society.

From this perspective, we can better understand a sentence of Coke’s that was important in igniting Gallego’s interest in him. It says: “Reason and authority are the two brightest lights of the world.”