The Declaratory Theory of Judicial Law-Making

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, which are hostile to the declaratory theory. One must either accept the declaratory theory or accept that judges make law, but one cannot accept both views. 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.