The Declaratory Fiction

Abstract

The Greek philosopher Parmenides believed that nothing ever changed. The appearance of change, he claimed, was an illusion. His disciple, Zeno, invented a famous paradox— wherein Achilles could not outrun a tortoise —to prove that motion and change were impossible. It is said that Diogenes the Cynic responded by standing up and walking about. Unsurprisingly, the no-change theory never gained a wide following. But it was not until the development of calculus, in the seventeenth century, that the flaw in Zeno’s paradox was understood. Achilles finally won the race. And yet, Parmenides is not completely without followers these days. It is ‘trite law’, to use a trite expression, that judicial decisions have retroactive effect. By the magic of the declaratory theory, a judicial decision embodies the law as it has always been, notwithstanding previous decisions to the contrary. No change is possible. For no judge has the ability to change the law—only to declare what it has been from time immemorial. Achilles cannot outrun the tortoise. This is the paradox of the common law. On the one hand, judges abjure the declaratory theory, asserting the right to change the law. On the other hand, they say that their latest pronouncement is the law unchanged. Take Lord Hoffmann’s word for it: ‘To say that [judges] never change the law is a fiction... But... a judicial decision changes the law retrospectively... ’ The law changes, but it has always been the same. As the French say: plus ça change, plus c’est la même chose. The more things change, the more