Abstract

Although the declaratory theory is arguably a central feature of common law adjudication, it is widely disparaged: either the law never changes, which is implausible, or it is changed retrospectively, which is unfair and contrary to the rule of law. These common objections are rooted in misconceptions about the nature of law. When we distinguish more clearly between the sources of law, whether in statute or precedent, and the corpus juris, shaped by general principles of justice, the declaratory theory is vindicated. Structured by familiar precedents and principles, the common law offers a framework within which the rule of law is sustained by moral reflection and argument. There is a close analogy with Rawlsian reflective equilibrium. It is only in virtue of an inquiry into justice, guided but not irrevocably bound by past practice, that there is any law to be declared. Legal judgment is precisely a determination of the requirements of justice as they apply in all the circumstances.