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William Blackstone's declaratory theory

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    Please help, I can't understand this theory! It doesn;t seem to make sense to me, how can a law that is overruled not be 'a bad law' just the 'wrong answer'.

    Can someone explain this in thick people terms coz I just don't get it!
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    The declaratory theory relates to the fact that judges do not make laws they simply discover and declare what the law has always been. That is why case law operates retrospectively. So when a precedent is overruled, the earlier court found the wrong law and the overruling court found the right one. This is often seen as a mere fiction and the reality is that judges do make and change the law.

    There is a good discussion of the theory in Kleinwort Benson v Lincoln CC
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    (Original post by Scarlet rose)
    The declaratory theory relates to the fact that judges do not make laws they simply discover and declare what the law has always been. That is why case law operates retrospectively. So when a precedent is overruled, the earlier court found the wrong law and the overruling court found the right one. This is often seen as a mere fiction and the reality is that judges do make and change the law.

    There is a good discussion of the theory in Kleinwort Benson v Lincoln CC
    Thanks, that was really helpful
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    Hi
    i really need help answering this question?
    how does blackstone describe the operation of judical precedent?

    Anyone who can provide me with answer to this question , i will be very thankful to them.

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Updated: October 11, 2009
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