Theories Of Declaratory Theory

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Does declaratory theory apply to the reality?

Declaratory theory stated that judges do not make law themselves. Instead, they follow rules of precedent and declare the law which has always been. Lord Reid once described the declaratory theory is ‘fairy-tale’. My view is accord with Lord Reid that the declaratory theory cannot apply to reality based on the following reasons:

(1) Changing social value

First, judges make law to bring it step with current social attitude and situations. From time to time, the morality and social situation changes. For instance, gay marriage becomes acceptable in society. The mindset of people in the past as well as law set in the past are no longer suitable for present situation. Thus, new law is made to suit
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In this case, the judges varied the law based on the changed social attitude towards marriage and rape. The defendant, R, forced his wife to undergo sexual intercourse and was convicted to have raped her. Originally, according to common law, The impossibility of marital rape under English common law was suggested in Sir Matthew Hale’s Historia Placitorum Coronæ that the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract. In the past cases such as R v Miller (where the husband had sexual intercourse with his wife against her will), there is marital consent that it is acceptable for sexual intercourse between husband and wife regardless of their willingness. However, considering the changed moral value towards marriage and rape, Lord Keith stated that common law rules no longer represented what was the true position of a wife in current day’s society and the duty of the court is to take steps to alter the rule. Therefore, the court held that ‘a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his

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