judges should not and do not make new law,
139
they merely declare what the
law is and what the law has always been.
140
Hence, a judge sits merely “to
administer the law;”
141
to engage in “renovation” of the law as distinct from
“innovation;”
142
and to follow “the spirit of cases [which] make law” and “not
[merely] the letter of particular precedents”.
143
This same idea is described by Stephen R Covey in a management text, The
Seven Habits of Highly Effective People.
144
In so doing Covey distinguishes
principles from practices: “While practices are situationally specific, principles
are deep, fundamental truths which have universal application”. Principles have
universal application because they “apply to individuals, to marriages, to
families, to private and public organisations of every kind”. When “these truths
are internalised into habits,” he says, “they empower people to create a wide
variety of practices to deal with different situations”.
Thus the real issue surrounding the declaratory theory is not whether the law of
the land actually changes, but rather the basis of change. According to the
simple positivist view, law changes because the judges make new law as they
choose. According to the declaratory theory the law changes in its letter as
part of civil law, but the underlying moral code which says what law should
and should not be does not change. What is change on the surface is really the
first articulation of a legal rule which reflects this underlying moral code. The
moral code itself has not changed and has always been there and always will
be there.
145
Limitations
Once a value is accepted and deployed in one area of life, induction is a useful
way of identifying other areas where the value might plausibly apply. By this
means induction can make the legal system more systematic. Induction,
however, has major limitations with regard to values. It cannot justify an
___________________
139
State Government Insurance Commission v Trigwell
(1979) 142 CLR
617
140
Marbury v Madison
(1803) 1 Cranch 137 at 177, 5 US 877 at 111,
cited with approval in Attorney General v Quin (1990) 93 ALR 1 at 25 per
Brennan J.
141
Harnett v Fisher [1927] 1 KB 402 at 424, [1927] AC 573
142
Calvins Case (1609) 7 Co Rep 1a, 27a, per Coke CJ
143
Fisher v Prince (1762) 3 Burr 1363 at 1364, per Lord Mansfield
144
Covey (1998) p 35
145
There is some discussion of this moral code and its basis in Chapter
19 Choice of Values.
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