Ethics and the Law
This is about my attempt to resurrect the declaratory theory of the law and about why it is still important
In 18th century England, judges claimed to discover the law, not make it. They examined a situation and discerned the morally right thing to do and that was the law. If ethical intuitionism is true, this is certainly possible, and the theory of morality I developed is a form of intuitionism.
Lord Coleridge (The Queen v. Instan [1893] 1 Q.B. 450) stated that “a legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement.”
The common law is has not been entirely supplanted by statute law. Some elements of the law are therefore intuitively discoverable moral obligations.
Since the law as a whole should be consistent and since it includes some laws that are legally enforced moral obligations, then any statute that is incompatible with morality ought to be rejected as invalid. If the law includes actual moral obligations, then it cannot remain consistent if it also includes obligations or permissions to violate morality. We cannot change morality but we can change statutes.
It follows, I believe, that judges should have the power to declare statutes invalid. This would empower ordinary citizens. Instead of having to build a political movement to change the law, they could launch a lawsuit. It might be difficult and expensive, but it would be less difficult and less expensive than building a political movement. It would not be an utterly unfamiliar sort of thing either. It would be like treating morality as a natural constitution.