The Declaratory Theory of Law
(2013) 33 Oxford Journal of Legal Studies 421-444
24 Pages Posted: 26 Aug 2014
Date Written: August 25, 2013
This article examines the declaratory theory of law and defends it from the most prominent modern attack on it. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. The article further examines the common law’s continuing commitment to the declaratory theory, a commitment that remains strong despite the considerable hostility of the academy. It explains that this commitment reflects the nature of the common law.
Keywords: common law, legal philosophy, legal theory, legal reasoning, legal history
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