In creating a fair and just legal system that can be seen to operate without influence there had to be definitive foundations on which all actions that are undertaken within the legal system might play out. While society wants laws to be enacted and people held to account for breaking the laws, it is widely recognised that there must be limits of the court in imposing rule and best practice has created the declaratory theory of law (Brewbaker, 2006). This law creates guidelines in law that judges must adhere to when sentencing and prohibits any judge from creating any new law or attaching more severe (or indeed less severe) sentences than the guidelines have created. In this sense, the judge is part of an autonomous legal system, one which is accessed through a competent and trained person (the judge) but which is predetermined in all aspects. The logic behind this approach is that the judge is not making the law but merely declaring what Parliament has created.
The law in its comprehensive form is supposed to be adhered to and considered as the primary guidelines by which any act must be undertaken. This makes it in line with what is expected from a civil legal system to accomplish, strict conformance to known policies. This is not to say that Parliament has not managed to create a new standard of law where they feel it is applicable at times (such as when human rights supersede any other law), but it does mean that there are fierce debates when that happens. At the core of these debates is whether or not a truly judicial society can succeed if Parliament can, at any time, change the rules to which the autonomous system proscribes.
Even where the declaratory theory of law is most strenuously applied the fact that, as Beever (2013) noted, judges have it in their power to alter the sentence based on their own belief of the situation, as long as it stays within guidelines predetermined by law, shows that there is no rock solid foundation. In this sense, a rapist does not have one exact sentence that is handed out each time, such as 5 years’ incarceration regardless. The fact remains that when any alleged criminal goes in front of the judicial system the sentences that they are given are not exactly the same as the next person who comes before the court with the same offense. There is a freedom of thought within the declaratory theory of law that allows a judge to sentence one person to two years and the next person to four years for the same offence. In this regard, it seems that the statement is contradictory in terms. The autonomy of the legal system is the base of this law and where it is said that judges must follow this autonomy it does not recognise that there is a variance to the foundational guidelines which, when in play, would seem to speak of a system where the judge is less bound than the system implies.
In countries like the United Kingdom where there is no constitution, there have to be limits to the judiciary. In such instances, when a case comes before the court that relates to an area outside their remit the court and judge usually defer to the authority that dictates the act. This is called judicial deference (Edwards, 2002). The reason why the principle of judicial deference is adhered to is because Parliament is considered to be more democratic than the courts are because they were elected and the laws were not. Also, it helps that there is a belief the Parliament have more expertise than the judiciary in policy matters and which have an ability (that lawyers do not) to turn a policy into law.
This act of judicial deference is not popular in all areas of society because it seems that the courts and judiciary do not act at all times within the solid set of foundation and autonomous laws that they could rely on in times where judicial deference is applied. Other people believe it is only right that the judiciary should defer to Parliament. The people who hold the power are usually the ones that believe they should be able to act autonomously and those who are held to general law believe all others should too. All of life would seemingly be set out within the framework of existing laws so it seems odd that at times judges can determine not to follow what would otherwise be a clear cut procedure and instead defer to the judgement of a different area of government. This really creates a contradiction in terms to the autonomy of law as it is given. Allan (2010) posited that within this regard the judicial power can limit or bind Parliament to laws which have been predefined and which exist on the books. This is a catch 22 in a sense, limiting both the parliamentary sovereignty and judicial power through the declaratory theory of law. Parliament would not be able to dictate a legally binding act that is not in line with the existing acts that the judiciary likewise has to follow, so even though there is supremacy of Parliament they are not able to work independently in setting and prescribing new laws. It has been seen that the most powerful proponents of judicial deference are the political party in government at any one time.
A common area where judicial deference is applied is in the area of human rights, which can transcend a case away from the normal parameters it could potentially have been considered under and into a wider context that is defined by Parliament. Whenever any new law or act is considered it would invariably fall within the pretext of a known law or multiple laws. These will dictate the avenues that are available to Parliament in their determination of additional law. It is in effect a balancing act where Parliament has the ability to discern when autonomous laws have become out of sync with their intended results and to suggest or create modifications when this happens. If judicial authority were always relied on as absolute then there would be no power available to make a change when changes in society happen; by effect, the people would at some point be stuck with archaic laws. In order to have the ability to change them where needed, there needs to be known mechanism such as the declaratory theory of law and judicial deference to ensure that the autonomy is correct.
There does seem to be a double standard in play where judicial deference is used at times where a person can avoid a criminal sentence that is in line with the sentencing anyone else would receive under the same issue due to having extra factors to their situation. This is very much the case with human rights and in examples where a murderer or rapist from a foreign country would normally be deported but whom cannot be if they have children or family in the country. This does not seem to be fair across the board.
Beever A (2013), The Declaratory Theory of Law, Oxford Journal of Legal Studies, Oxford University Press
Martin, J. (2013) The English Legal System, 7th edtn, London, Hodder Education
Allan T (2010), Deference, defiance, and doctrine: defining the limits of judicial review, University of Toronto Law Journal Volume 60, Number 1, Winter 2010 pp. 41-59.
Brewbaker W (2006), Found Law, Made Law and Creation: Reconsidering Blackstone’s Declaratory Theory, Journal of Law and Religion, Vol. XXII, Page 255, University of Alabama Public Law Research Paper No. 899103.
Edwards RA (2002), Judicial Deference under the Human Rights Act, The Modern Law Review, Vol. 65, No. 6 (Nov., 2002), pp. 859-882.