UK Legal Theory

Mon, 06 Jul 2026 00:00:00 +0000

The Common Law Tradition and the Declaratory Theory

English legal theory is rooted in the common law tradition and the declaratory theory of law, which holds that judges do not make law but merely declare what the law has always been. Sir William Blackstone, in his Commentaries on the Laws of England (1765–1769), gave systematic expression to this view, presenting the common law as the embodiment of immemorial custom and natural reason. Blackstone’s Commentaries provided the first comprehensive treatise on English law and exerted enormous influence on both English jurisprudence and the development of American law. Sir Edward Coke, in the seventeenth century, had earlier articulated the common law as “artificial reason” — a form of practical wisdom developed through centuries of judicial experience — and famously asserted in Dr. Bonham’s Case (1610) that the common law could control acts of Parliament, a claim that resonated with later constitutional debates. The declaratory theory persisted well into the twentieth century, though it was increasingly recognised as a fiction after the House of Lords formally abandoned it in Practice Statement (Judicial Precedent) (1966), acknowledging that the House could depart from its own precedents and thereby explicitly make law.

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UK Legal Theory

The Common Law Tradition and the Declaratory Theory